IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 MACA.No. 1601 of 2004() ----------------------- OPMV.1000/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANTS/PETITIONERS: ---------------------------------------------- 1. UMADEVI (MINOR) D/O. SIVARAJAN, EDINJAKUZHI VEEDU, VENTAR P.O., KOTTATHALA, KOTARAKKARA. 2. T.SIVARAJAN, S/O. THANKAPPAN, EDINJAKUZHI VEEDU, VENTAR P.O., KOTTATHALA, KOTTARAKKARA. (THE 1ST APPELLANT MINOR IS REPRESENTED BY HER FATHER AND GUARDIAN, 2ND APPELLANT IN THIS APPEAL) BY ADV. SRI.P.K.RAVI KRISHNAN RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. A.MUHAMMED KUNJU, S/O.ALI AKBAR, ATTUKAL PURAYIDAM, THAMARAKKULAM, KOLLAM. 2. V.REJI, S/O VARGHESE, VAYALIL VEEDU, PALLIKAL, KOTTARAKKARA. 3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., KOLLAM. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- M.A.C.A. No.1601 of 2004 --------------------------------------- Dated this the 23rd day of October, 2008 Judgment Koshy,J. The first appellant, at the age of six, sustained personal injuries in a motor accident. The Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent, but, against a claim of Rupees Two lakhs, only Rs.56,597/- was awarded as compensation and directed the third respondent insurance company to deposit the same. The only dispute in this appeal is regarding the quantum of compensation. The Tribunal has taken notional income as fixed under the second schedule for calculating the compensation. We see no ground to interfere with the same. As she was aged only six years at the time of accident, 15 was taken as the multiplier taking guidance from the second schedule. Therefore, it needs no enhancement. Then, the question is what are the injuries suffered by the petitioner. Now, we will come to the difficulties faced by the petitioner. 2. At paragraph 10 of the award, the Tribunal has considered the medical certificate as follows: M.A.C.A.No.1601/2004 2 "Ext.A5 is the copy of the wound certificate issued from the Government Hospital, Kottarakkara in which extensive lacerated wound involving left foot with deglowing of skin on the upper and lower part of foot and left big toe completely cut off and hanging loose. P-1 was referred to the Medical College Hospital, Thiruvananthapuram after giving first aid. Ext.A7 series consists of two referral O.P. cards both are issued from the above said hospital. In the first referral O.P. card, crush injury (left) foot with deglowing injury of whole foot into distally covered flap. Wound thoroughly debrided and skin grafting of foot done. 2nd and 3rd toe gangraneous and amputated at level of DIP. It is also noted in the first referral O.P. card that P-1 was admitted in the hospital on 14.6.2000 and discharged on 3.7.2000. In the second referral O.P. card wound thoroughly debrided and split skin grafting done under local anesthesia are noted. It is also noted that P-1 was admitted in the hospital again on 19.7.2000 and discharged on 26.7.2000. Ext.A8 consists of two discharge cards both are issued from the Government Hospital, Kottarakkara. In the first discharge card, it is noted that P-1 was admitted in the hospital on 4.7.2000 and discharged on 20.7.2000. In the second discharge card, it is noted that P1 was admitted in the hospital on 27.7.2000 and discharged on 6.8.2000. House rest for 3 months is also seen advised. Ext.A9 is the treatment certificate issued from the Medical College Hospital." The Tribunal found that there was a deglowing injury sustained to left foot, the loss of big toe and amputation of second and third toes, the Tribunal has taken 12% as the percentage of disability as M.A.C.A.No.1601/2004 3 percentage of disability was not certified by the doctors. Under the first schedule to the Workmen's Compensation Act, for loss of big toe under item 39, percentage of loss of earning capacity is fixed as 14. Loss of other two toes under item 43, percentage of disability is taken as 5. So, 19% disability was assessed for the deglowing injury sustained to the left foot as such. It is stated that because of the amputation of big toe along with other two toes, there will be difficulty in walking and special shoe has to be used. It will affect the marriage prospect also. However, Workmen's Compensation Act as such is not applicable for calculating compensation in a petition under section 166 of the Motor Vehicles Act, but, that can be looked into for guidance as no medical certificate assessing disability was produced. In the above circumstances, considering the injuries, we take 15 as the percentage of disability. If that be so, compensation payable will be Rs.1,250 x 12 x 15 x 15 = 100 Rs.33,750/-. The Tribunal has awarded Rs.27,000/- under this head. So, additional compensation payable for permanent disability and loss of earning power will be Rs.6,750/-. The Tribunal has awarded Rs.1,000/- each towards transportation expenses, extra nourishment and by-stander's expenses. The injured was aged only M.A.C.A.No.1601/2004 4 six years. On three occasions, she was admitted in the hospital for 44 days. She was in the hospital as an inpatient for three months. Thus, she was under treatment for about six months and a by- stander was necessary for all the six months. She lost her studies for one year. Being a child, she needed extra-nourishment. She went to the hospital thrice and she had to be taken to the hospital for consultation several times. Therefore, for hospitalisation, extra nourishment, transportation expenses, cost of special shoes and by- stander's expenses, we award Rs.7,000/- more. For medical expenses, only Rs.1,597/- was awarded. Since she was in the hospital for 44 days in the first instance and the treatment was continuing, there will be many expenses not reflected in the bills. It is also submitted by the claimant that all the bills were not kept. Considering the long period of treatment, we award Rs.5,000/- more for treatment and incidental expenses. It is submitted that because of the amputation of three toes, tribunal found that there is disfiguration also. Taking these aspects she is unable to walk properly and marriage prospects will be affected. So, for diminishing of marriage prospects etc., we award Rs.10,000/- more. Thus, the claimants are entitled to Rs.28,750/- more than that is awarded by the tribunal. The above Rs.28,750/- should be M.A.C.A.No.1601/2004 5 deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit over and above the amount decreed by the tribunal. The accident occurred in 2000. The amount should be deposited in a nationalised bank and claimant should be allowed to withdraw the same at the time of marriage or on attaining the age of 21 whichever is earlier. The appeal is allowed partly. J.B.Koshy Judge K.P.Balachandran Judge vaa M.A.C.A.No.1601/2004 6 J.B. KOSHY AND K.P.Balachandran,JJ. ------------------------------------- M.A.C.A.No.1601/2004 ------------------------------------- Judgment Date:23rd October,2008