IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 MACA.No. 1 of 2010() -------------------- OPMV.843/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONER ------------------------ JAISON GEORGE, AGED 31 YEARS, S/O. GEORGE P.J., PARUTHELY HOUSE, PERUMBAVOOR, IRINGOL P.O., ERNAKULAM-683 548. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENT(S): RESPONDENTS -------------------------- 1. ABDUL RAHIMAN, S/O. S.KHADER, RAMANATH HOUSE, IRATTAYIL HOUSE, KODAMBU, PALAKKAD. 2. ABOOBACKER SIDHIQUAL AKBAR, S/O. VEERAN HAJI, KAYALUVAKKATH HOUSE, PARIYAPURAM, ANGADIPURAM, PERINTHALMANNA, PALAKKAD. 3. UNITED INDIA INSURANCE CO. LTD., SIMLA COMPLEX, KURUPPAM ROAD, TRICHUR. (POLICY NO.100606/31/01/00003936 - VALIDITY 8/6/2006 TO 7/6/2007). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ M.A.C.A.No. 1 OF 2010 ------------------------ Dated this the 15th day of October, 2010 JUDGMENT Gopinathan, J. ' The appellant, while driving mini lorry bearing registration number KL-7 AU-4056 along Kunnamkulam - Perimplavu road from south to north, another mini lorry bearing registration number KL-8 V-8834 driven, owned and insured by respondents 1 to 3 respectively hit against and as a result, the appellant sustained severe injuries. The accident was at 6.15 A.M. on 26/7/2006 at Prambadam near Kunnamkulam. Claiming a sum of Rupees Three Lakhs as compensation, the appellant filed O.P. No.843/2006 before the Motor Accidents Claims Tribunal, Ottappalam with a plea that the accident occurred because of the negligent driving of the 1st respondent and hence the respondents are liable to compensate the petitioner. 2. The 3rd respondent attributed negligence against the appellant and contended that the first respondent was not MACA.No.1/2010 2 negligent and that the claim made in the petition is highly exaggerated and that the petitioner sustained no disability and that the respondent is not liable to compensate the appellant. 3. The petition was enquired along with another petition, O.P. No.854/2006 filed by another injured. The Tribunal below on evaluating the evidence of the appellant as PW1 and that of an Orthopaedician as PW2 and Exts.A1 to A14 arrived at a finding that the accident occurred because of the negligent driving of the first respondent and hence the respondents are labile to compensate the appellant. The appellant claimed 15% disability. The Tribunal on evaluation of evidence determined disability at 5% and Rs.97,350/- was awarded as compensation. Assailing the inadequacy of the compensation awarded the appeal was filed. 4. Respondents, though served, remained ex parte. Learned counsel for appellant is heard. Ext.A5, the copy of the charge sheet would show that the police after investigation filed a charge sheet against the first respondent alleging offences under Sections 279, 337 and 338 of IPC. There is no contra evidence adduced by the respondents. Hence, we find that the MACA.No.1/2010 3 findings of the Tribunal below that the accident was because of the negligent driving of the first respondent requires no interference. Respondents are severally and jointly liable to compensate the appellant. 5. The appellant had sustained fracture ribs 5th and 6th left side, compound fracture(R ) femur Type III, fracture metatarsal 3 and 5th foot. Ext.A6 is a discharge card. Ext.A20 is a disability certificate issued by PW2. Going by Exts.A6 and A10 and the testimonies of PWs1 and 2, it appears that the fracture was managed by closed reduction method. In Ext.A10, PW2 had certified that the appellant had sustained 1.5 cm. shortening of right leg. The appellant has malunited 3rd metatarsal (L) and united fracture of 5th metatarsal with stiffness of tarso metatarsal joint, united fracture of right femur and stiffness of right hip joint. With the above, PW2 had further certified the permanent disability at 15%. In Ext.A10, it is also certified that there was pain in right femur on walking some distance, pain and stiffness of left foot and pain in chest on exertion. In the box PW1 has no case that he suffers pain chest. Adding to the above, PW2 also had not given any reason for pain chest on MACA.No.1/2010 4 exertion. Therefore, the disability certified on this count is not sustainable. Though PW2 had deposed that there is 1.5 cm shortening of right leg, the Tribunal noticed that there was no limping in walking. It was brought out in cross examination that footwears on left and right used by the appellant are of same height. Though it was deposed by PW2 that the appellant had undergone physiotherapy treatment, there is no whisper in the evidence of PW1 regarding that aspect. Generally stiffness of the joints as well as the pain on joints could be cured to some extent by physiotherapy treatment. Though it was revealed in evidence that on 25/7/2008 the appellant was subjected to review examination by the Doctor who treated him, the documents were not produced. In the above circumstances, the Tribunal below disbelieved the evidence of PWs 1 & 2 and declined to rely on Ext.A10 in full. However, the Tribunal assessed the permanent disability at 5%. We also find that the disability certified in Ext.A10 cannot be accepted as such. 6. It was alleged that the appellant was 31 years old at the time of accident and as a driver he was earning Rs.4500/- per MACA.No.1/2010 5 month. Though no evidence was adduced by the appellant regarding the avocation and the income, the Tribunal below believed the evidence of PW1 that he was 31 years old and was a driver. To determine the compensation for disability, the monthly income was assessed at Rs.3000/-. That assessment is absolutely correct. 5% of the above amount was capitalised for 17 years and compensation for disability was determined at Rs.30,600/-. Based upon Ext.A9 series medical bills, Rs.39,200/- was awarded as treatment expenses. Taking note that the petitioner was inpatient in the hospital for a week, Rs.1050 was awarded as expenses for by -standers. Towards compensation for pain and sufferings, a sum of Rs.8,000/- was awarded. Towards loss of amenities, a sum of Rs.4,000/- was awarded. Towards transportation expenses and extra nourishment and damage to clothes, Rs.2500/- was awarded. Towards loss of income for four months, a sum of Rs.12,000/- was awarded. In total a sum of Rs.97,350/- was awarded as compensation. 7. Having heard the learned counsel for the appellant and pursuing Ext.A10 and the evidence of PWs 1 and 2 and taking MACA.No.1/2010 6 note that on getting old aged, the above fractures sustained by the appellant may cause complications and life long sufferings, we find that it would be just and appropriate to fix the permanent disability at 7.5%. If calculated so, the appellant would be entitled to a further sum of Rs.15,300/- towards compensation for disability. As regards the compensation awarded in respect of other counts, we find that it is just and reasonable and requires no enhancement. In the result while allowing the appeal in part, we award a further sum of Rs.15,300/- towards compensation for disability. In total, the compensation awarded to the appellant would stand enhanced to Rs.1,02,650/-. The appellant is entitled to interest as awarded by the Tribunal. No costs. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk