IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 MACA.No. 1202 of 2004() ---------------------------------- ((AGAINST THE AWARD DATED 27.4.2004 IN OPMV.724/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S):PETITIONER. ---------------------------------------- M.A.NOUSHAD, S/O.M.M.ABDUL KAREEM, AGED 37 YEARS, MUNDACKAL HOUSE, KUMBANKALLU KARA, KARIKODE VILLAGE. BY ADV. SRI.T.J.MICHAEL SRI.P.NOOR SEMIR RESPONDENT(S): RESPONDENTS. -------------------------------------------------- 1. BABU SEBASTIAN, S/O.SEBASTIAN, KOCHU PURACKAL HOUSE, ALAKODE KARA, ALAKODE VILLAGE, THODUPUZHA TALUK. 2. K.C.TOMY, S/O.K.J. CHACKO, KACKALIYIL HOUSE, VELIIYAAMATTOM KARA, ELAMDESOM, THODUPUZHA TALUK.--DELETED. 3. THE BRANCH MANAGER, THE NATIONAL INSURNCE CO.LTD., THODUPUZHA. 4. KRISHNANKUTTY, S/O.NARAYANAN NAMBINATTU HOUSE, THALUMKANDAM, MANKULAM, IDUKKI DISTRICT. (THE NAME OF R2 IS DELETED FROM THE PARTY ARRAY OF RESPONDENTS AT THE RISK OF the PETITIONER/APPELLANT AS PER ORDER DATED 19.6.2009 IN I.A.1492/2009) R3 BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE & SRI.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.1202 of 2004-B ---------------------------------------------- Dated, this the 14th day of July, 2009 J U D G M E N T K.M.Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. The Tribunal has granted a sum of Rs.2,65,415/-. Dissatisfied by the quantum the claimant filed this appeal. 2. We heard the learned counsel for the appellant and learned counsel for the insurance company. 3. Learned counsel for the appellant would firstly contend that the appellant being a petty trader he should have been awarded compensation for loss of earning for a period of two years. The Tribunal has taken Rs.2,000/- as the monthly income with which the appellant has no quarrel. Rs.10,000/- is awarded towards loss of earning for five months. We notice that the appellant has not gone to witness box and given evidence regarding the period during which the appellant lost his earnings as a result of his injuries. Of course, this is a case where the Tribunal has awarded Rs.76,800/- towards disability. Since the documentary MACA 1202/2004 -2- evidence adduced does not appear to support higher compensation towards loss of earning, we reject the claim. 4. Secondly, the doctor has certified 30% disability. But, only 20% disability is taken by the Tribunal. The learned counsel for the insurance company points out that having regard to the injuries, the compensation awarded cannot be said to be unjust. It is not the law that whenever disability is certified that it is to be accepted in toto irrespective of circumstances. The appellant was not examined also. No doubt, the appellant is a petty trader. We feel that the appellant has been awarded just compensation by taking the disability at 20%. 5. Lastly, it is contended that towards pain and suffering and loss of inconvenience, amenities and enjoyment in life only a sum of Rs.20,000/- is granted. We feel that there is some merit in the last submission. The appellant suffered fracture of both bones of left leg, circumferential deglowing of the lower third of left leg with infected sclerotic bone. There is skin grafting done and he was treated for infection sclerotic bones and above knee slab applied. It MACA 1202/2004 -3- would appear that he had to undergo long spells of treatment in hospitals. In fact, he was an inpatient for 150 days in various spells in different hospitals. The Tribunal has also noted that regular review was done. The certificate would show that there was shortening of his leg. Accordingly, we feel that the appellant can be awarded a further sum of Rs.25,000/- under the head pain and suffering and loss of amenities. Accordingly, the appeal is allowed in part and the appellant is allowed to realise Rs.25,000/- more from the third respondent with 7.5 percent interest from the date of the petition till the date of realisation. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS