IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 MFA.No. 1380 of 2001(D) --------------------------------- OPMV.1136/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ......................................... APPELLANT/PETITIONER ------------------------------------- PURUSHOTHAMAN, AGED 48 YRS, S/O. GOPALAN, EDATHADEN HOUSE, ALOOR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.T.N.MANOJ SRI.DINESH R.SHENOY RESPONDENTS/RESPONDENTS -------------------------------------------- 1. K.V. SASI, S/O. VELAYUDHAN, KALAPARAMBIL HOUSE, P.O. MELOOR, MUKUNDAPURAM TALUK. 2. CHANDRAN, S/O. EKKORAN, ANGARATH HOUSE, ALATHUR P.O., ANANDAPURAM. 3. THE MANAGER, ORIENTAL INSURANCE CO. LTD., CHALAKUDY BRANCH. 4. P.M. MAJEED, POOVATHUNGAL HOUSE, CHALAKUDY P.O., MUKUNDAPURAM TALUK, THRISSUR DIST. BY ADV. SRI.P.G.SURESH FOR R2 SRI.A.P.MENON FOR R2 SRI.M.JACOB MURICKAN FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.F.A. No. 1380 OF 2001 --------------------- Dated this the 26th day of May, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Irinjalakkuda, in OP(MV) No.1136/93. The appellant sustained injuries in a road accident including a fracture on the finger. He was initially admitted in the hospital for 11 days and then was taken to the Specialist Hospital in Ernakulam where he had undergone treatment from 24.2.93 to 3.3.93. The Tribunal did not accept the disability certificate nor did grant any amount towards bystanders expenses or other expenses. It is seen from the description in the disability certificate that the appellant has suffered deformity of the right middle finger with fracture of middle bone and deformity of the right ring finger with loss of sensation and lack of grip power. The Doctor also found that the fracture was malunited and that flexion of the middle finger and ring finger was not possible. The court below rejected the disability certificate for want of evidence. Even a perusal of the wound certificate would reveal that the person has sustained fracture of the middle bone of the middle finger. Therefore it was not correct on the part of the court below to simply discard the disability certificate. Certainly the fracture would have caused him excruciating pain and therefore I am inclined to increase the compensation towards pain and MFA NO.1380/01 2 sufferings by Rs.2,000/-. I also take into consideration the disability reported by the Doctor and the fact that he could get employed after retirement and as the fractures are malunited and there is loss of grip power it would certainly affect his working capacity and that too of right hand. So even if a notional income of Rs.1,000/- is taken and 5% disability is calculated and 10 is used as the multiplier one can award him Rs.6,000/- as compensation under that head. Similarly the court has not awarded any compensation for the bystanders expenses or other expenses incurred at the time of hospitalisation. I allow Rs.1,000/- on that head. Therefore there will be an enhancement of Rs.9,000/-. 2. The next question is regarding the liability. In spite of notice, neither the driver nor the owner produced the licence of the driver and they did not even bother to adduce any evidence. Therefore, though the liability to the third party has to be retained the power to get reimbursement from the persons responsible has to be retained. But I find that there is a mistake committed by the court below by directing the Insurance company to get back the amount from respondents 1,2 and 4 in the petition. The Tribunal has arrived at a finding that the transfer is not approved and further the claimant has also objected to the Ext.B1 karar. The Tribunal in page 11 has definitely enters into a finding that the 1st respondent himself is the owner of the vehicle and that he is liable for the same. Under such circumstances he should not have directed the 4th respondent also to pay MFA NO.1380/01 3 back the amount. Therefore it requires modification. I make it clear that respondents 1 and 2 is liable for the amount. In the result, the MFA is partly allowed and the Insurance company is directed to pay an additional compensation of Rs.9,000/- with 7% interest on the said sum from the date of petition till realisation and it is given the power to get the amount recovered from respondents 1 and 2 jointly and severely with respect to all the amounts covered by the award by way of execution. I also direct the Insurance company to pay a sum of Rs.1,000/- as cost incurred for the conduct of the case before the Tribunal and here and get it reimbursed from respondents 1 and 2. M.N.KRISHNAN, JUDGE vps MFA NO.1380/01 4 MFA NO.1380/01 5