IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 MFA.No. 320 of 2003(B) ---------------------- OPMV.1109/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT: PETITIONER --------------------- M.J.VARKEY @ BABY, S/O.JOSEPH, RESIDING AT NEDUNGAD HOUSE, ADIVARAM POST, THAMARASSERY, KOZHIKODE. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENTS: RESPONDENTS ------------------------ 1. ABDURAHIMAN, S/O.ALI MOHAMMED, NALAKORTH HOUSE, PURANGU POST, KANJIRAMUKKU, MALAPPURAM. 2. SIVASANKARAN, S/O.APPUKUTTY, PANAKKAL HOUSE, NADURA AMSOM DESOM, PARAPPANANGADI, KOZHIKODE. 3. M/S.NEW INDIA ASSURANCE CO.LTD, DIVISIONAL OFFICE, REHMATH BUILDING KALLAI ROAD, KOZHIKODE. BY ADV. SRI.VPK.PANICKER THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.320 of 2003 ----------------------------------------- Dated this the 4th day of April, 2008 JUDGMENT Koshy, J. Appellant-petitioner sustained injuries in a motor accident on 6.5.1993 due to the negligence of the driver of the vehicle, insured by the third respondent Insurance Company. Against a claim of Rs.2,00,000/-, the Tribunal has awarded Rs.1,11,935/-, inclusive of reimbursement of medical expenses. It is the case of the petitioner that he was treated as an inpatient for 118 days and he continued outpatient treatment for one year and he has produced certificates to prove the same. According to him, he is unable to do anything with his right hand and cannot even eat food with his right hand. Exhibit A5 is the disability certificate dated 12.8.94 issued to the petitioner from Asoka Hospital, Kozhikode assessing the permanent disability of the petitioner at 45% on account of range of movement at the elbow from 40% flexion to 95% flexion. Exhibit A6 is a treatment certificate dated 12.8.94 issued to the petitioner from Asoka Hospital, Kozhikode stating that the petitioner was treated as inpatient at Asoka Hospital Kozhikode from 23.9.93 to 30.9.93 and MFA.320/03 2 from 16.11.93 to 16.12.93. Exhibit C1 is the proceedings of the Medical Board assessing the permanent disability of the petitioner at 13% on account of partial ankylosis of right elbow with range of limited to Arch 180 degree to 90 degree flexion and partial ankylosis of right forearm. Exhibit X1 is the case sheet in respect of the petitioner maintained at Medical College Hospital Kozhikode. It shows that the petitioner had grade III compound montossia fracture right and lacerated wound 15 x 1 cm over anterior aspect of right leg extensor. The Medical Board assessed 13% disability. The Tribunal accepted the same. He was 37 years old. The Tribunal fixed 16 as the multiplier. Taking guideline of the second schedule, we see no ground to change the same. He was working as daily deposit collector in Canara Bank. Apart from that, he was an LIC agent also. In ye year 1992 he got commission of Rs.29,505/-. That was proved by the Branch Manager. It is his case that even though disability was 13%, his services were terminated as deposed by the Manger, as he was unable to do the deposit collection work. He deposed that apart from that, he lost the job of LIC agent due to the accident. Exhibit A3 certificate would show that he was working as daily deposit collector in Canara Bank and every year his MFA.320/03 3 commission amount was increasing. That shows prospects in employment. Taking all these into consideration, we are of opinion that the Tribunal ought to have taken Rs.3,000/- as the monthly income. If that be so, compensation payable will be Rs.74,880/-. The Tribunal awarded only Rs.49,920/-. Balance is Rs.24,960/-. It is submitted by learned counsel appearing for Insurance Company that when compensation for loss of earning power was awarded, separate compensation of Rs.10,000/- for disability should not have been awarded. But we note that the Tribunal has awarded only Rs.15,000/- for pain and suffering. He was inpatient for 118 days and for one year he was under treatment as outpatient. There was fracture to right leg and right hand and considering the injuries, Rs.10,000/- more ought to have been awarded for pain and suffering. The Tribunal has granted Rs.12,000/- for actual loss of earning for treatment period considering the fact that he was totally unable to move about for six months. Since we have taken Rs.3,000/- as the monthly income, he is entitled to an additional amount of Rs.6,000/- for actual loss of earning for the treatment period of six months. Therefore, additional amount payable is Rs.30,960/-. The above amount should be deposited by the third MFA.320/03 4 respondent Insurance Company with 7.5% interest from the date of application till the date of deposit. On deposit of the amount, the appellant is allowed to withdraw the same. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. MFA.320/03 5 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.320 of 2003 ------------------------------ JUDGMENT 4.4.2008