IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 MFA.No. 1396 of 2001() ---------------------- OPMV4.41/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/ PETITIONER: ----------- ARAVINDAKSHAN, S/O.P.C.K.NAMBIAR, PUTHANVEETTIL HOUSE,P.O. PERUMPARAMBU, MANGATOOR, EDAPPAL. BY ADV. SRI.P.G.PARAMESWARA PANICKER RESPONDENTS: ------------- 1. P.ABDUL SALAM, AGED 34 YEARS, S/O.POKKER, PADINJAKKARA VEEDU, VILAYOOR POST, PALAKKD DISTRICT ( DL. NUMBER 528/83//P0, VALID UP TO 21.3.99, BADGE NUMEHBR 443/92). 2. O.MUHAMAD, S/O.KUNHAVARAN HAJI, ORAVIL HOUSE, POST ANGADI, KUMARANELLOOR, PALAKKD DISTRICT. 3. UNITED INDIA INSURANCE CO. LTD. P.B.NUMBER 9, 1ST FLOOR, WESTERN WING, AMBADI BUILDING, C.V. JUNCTIN, PONNANI-679 571 (POLICY NUMBER 101005/31/21/1/8119/97), POLICY VALID FROM 26.10.97 TO 26.10.98) R3 BY ADV. SRI.P.V.JYOTHI PRASAD THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No.1396 of 2001 ------------------------------------------------ Dated this the 10th day of January, 2008 JUDGMENT Koshy, J: A 38 year old young man suffered serious injuries in a motor accident on 14.5.1998. He claimed a compensation of Rs.3,50,000/-. Thereafter, it was amended to Rs. 5 lakh and later it was amended for a claim upto Rs.11 lakhs. The Tribunal awarded Rs.2,78,283/- with interest and costs. The only dispute is regarding quantum of compensation. 2. It was found that the accident occurred due to the negligence of the first respondent driver of the lorry insured by the 3rd respondent insurance company. The tribunal has considered the injuries in the award as follows: “Ext.A5 is the wound certificate of Aravindakshan issued from Aswini Hospital, Thrissur. The injuries noted are: 1. Black eye both sides, bleed from nose. 2. Fracture femur right and fracture both bones (R ) leg. 3. Lacerated wound 3 x 2.5 cm on nose splitting nasal septum. 4. Fracture skull, fracture maxilla and fracture lower pole of ( R) patella. Ext.A6 is treatment certificate issued from Orthopaedician of Aswini Hospital. Apart from detailing the severe fracture injuries sustained to petitioner, certificate also reveals the nature of treatment rendered to petitioner. Tibia and femur fracture were treated by open reduction and internal fixation as well as applied inter maxillary fixation for maxillary fracture. During post operative period wound infected on the right leg and therefore implants were removed from [MFA.1396/01] 2 right tibia and was temporarily fixed on external fixation. He was discharged on 13.7.98 and was readmitted on 10.8.98. ( R) tibia was fixed on ilizarov frame and was discharged on 22.8.98. 19. Ext.A7 series are discharge summaries. They reveal the period of hospitalisation underwent, as well as the nature of treatment rendered to petitioner. Ext.A9 series are 2 medical certificates issued by PW3 Orthopaedician of Aswini Hospital, Thrissur. PW3 as certified 50% permanent physical disability to petitioner. It is further certified that petitioner is physically handicapped and was totally disabled from 11.7.98 to 6.8.99. There is shortening of ( R) leg by 6 cm with stiff ( P-8) ankle and knee.” According to Tribunal, only a lesser percentage of whole body functional disability need be taken. At paragraph 26 of the award, the Tribunal held as follows: “26. Petitioner is suffering from 50% permanent disability and it is proved by PW3. However, a lesser percentage of whole body functional disability, a sum of Rs.65,000/- is allowed as compensation under the head disability causing loss of earning power.” Compensation should be granted on a multiplier method. For that we have to take out disability. According to claimant, he was unable to do any work after the accident. The disability certificate which was proved by PW3 reads as follows: “Certified that the above patient is under my care from 14/v/98 following RTA. He sustained multiple compound fractures of Rt lower limb, head injury etc. He continues to be under treatment shortening of Rt leg 6 cm. Stiff ankle and knee. He has just started walking. Needs hospitalization and treatment including surgical. At present his disability can be assessed as about 50% ''. [MFA.1396/01] 3 3. The above certificate only speaks about disability at the time when he started working after the incident. It cannot be taken as permanent disability. However, considering the long treatment undergone by him and the substantial disability, the disability certificate was issued only on 9.10.99 after one year and 5 months of the accident. At that time, he only started walking. In such circumstances, we take permanent disability at 35%. According to the claimant, he was employed in Abudabi at the time of accident. He produced a certificate issued from the employer at Abudabi showing his monthly income as 1500 Dirhams which will come to Rs.15,000/- at the exchange rate applicable. But his passport and visa were not produced. His educational qualification also is not revealed before the Tribunal. The Tribunal therefore fixed Rs.2000/- as the notional income. Even though he did not produce the passport, we can gather that he was 38 years old and was maintaining a family and considering these facts we fix Rs.3000/- as the monthly income. We take multiplier as 17 taking guidelines from second schedule. If that be so, the compensation payable will be Rs.2,14,200/-(Rs.3000x12x17x35/100). The Tribunal has granted only Rs.65,000/- for disability. So, the additional amount payable will be Rs.1,49,200/-. According to the Tribunal, he was unable to do any work for about 8 months. The medical certificate proved by PW2 shows that he started walking after more than one year. However, Tribunal granted 8 months full [MFA.1396/01] 4 wags for the period of treatment i.e. Rs.16,000/-. If 8 months loss of earning is taken, he will get Rs.8000/- more on that count. In fact, he was unable to walk or do any work at least for one year. His monthly income was calculated at R.3000/- Therefore additional amount that can be granted on that count is Rs.12,000/-. The Tribunal found that he was hospitalised for 3 months and further treatment was necessary and entire medical bill of Rs.1,21,283/- was reimbursed. On all other heads, sufficient amount was granted. Hence, no enhancement is necessary under other heads. It is submitted that the Tribunal found that removal of implants were necessary. No amount was awarded for future medical expenses. But considering the interest on the total amount, we are of the view that it is not necessary to grant further expenses for future medical expenses. The additional amount of Rs.1,61,200/- should be deposited by the 3rd respondent-Insurance company with 7.5% interest from the date of application till its deposit over and above the amount decreed by the Tribunal. On deposit of the amount, appellant is allowed to withdraw the same. Appeal is partly allowed. Sd/- J.B. KOSHY, JUDGE. Sd/- Krs. K. HEMA, JUDGE. [MFA.1396/01] 5 J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No.1396 of 2001 ------------------------------------------------ Dated this the 10th day of January, 2008 JUDGMENT