IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 MACA.No. 1664 of 2004() ----------------------- OPMV.485/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- WILSON PHILIPOSE, S/O.PHILIPOSE, ARACKAL HOUSE, 200 ACRE KARA, MANNAMKANDAM VILLAGE, DEVIKULAM. BY ADV. SRI.T.V.GEORGE SMT.LINDA GEORGE RESPONDENT(S): --------------- 1. P.K.GEORGE, S/O.LATE P.P.KURIAKOSE, PEECHAKKARAL HOUSE, HOUSE NO. 20, WARD NO. VIII, KOTHAMANGALAM, ERNAKULAM. 2. JAYAKUMAR, S/O.RADHAKRISHNAN NAIR, KALIARACKAL HOUSE, AYAPPARA. 3. THE UNITED INDIA INSURANCE COMPANY LTD, MUVATTUPUZHA. ADV. SRI.PMM.NAJEEB KHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY, Ag.C.J. & THOMAS P. JOSEPH, J. -------------------------------------- M.A.C.A.No.1664 of 2004 -------------------------------------- Dated this the 19th day of December, 2008. JUDGMENT Thomas P.Joseph, J. Appellant, at a time when he was aged 35 years met a motor accident on 19.10.1997. He was travelling in a jeep. The bus driven by the second respondent, allegedly on account of its rash and negligent driving hit the jeep causing serious injuries to the appellant. He estimated the compensation payable at Rs.14,40,700/- but limited the claim to Rupees Six lakhs. Tribunal after consideration of the evidence fixed the compensation payable at Rs.1,76,655/-. Hence this appeal claiming enhanced compensation. 2. Heard counsel for the appellant and contesting respondent. 3. Point for consideration is whether appellant is entitled to get enhanced compensation? 4. Perused the relevant records. MACA No.1664/2004 2 5. The Point. That the accident occurred due to the rashness and negligence of the second respondent having been found by the Tribunal and not challenged by the respondents, that issue has become final. What then remained for consideration is only whether appellant is entitled to get enhanced compensation. Ext.A5 is the copy of wound certificate and Ext.A10 is the discharge summary. Appellant suffered the following injuries: 1. Lacerated injury on the right elbow and medial side of the right eye and nasal bridge and over the right knee. 2. Comminuted fracture of right humerus with dislocaton. Appellant underwent treatment at Medical Mission Hospital, Kolencherry and then at Kovai Medical Mission Hospital, Coimbattoor. Appellant produced various documents to prove his inpatient treatment in the said hospitals. It is contended by learned counsel for appellant that monthly income fixed by the Tribunal is low and that compensation awarded on the various counts are meagre. MACA No.1664/2004 3 6. Appellant was working as manager of a wine shop and according to him, earning Rs.5,000/- per month. He produced Ext.A6, salary certificate in proof of the same. Tribunal did not accept Ext.A6 and fixed his monthly income at Rs.1,500/-. Though Ext.A6 as rightly found by the Tribunal is not properly proved, it is not very much in dispute that the appellant was working as manager in a wine shop. He was aged 35 years at the relevant time and is maintaining a family with his earnings. Considering the wages payable to unskilled labourers at the relevant time, we are inclined to think that appellant was earning atleast Rs.100/- per day for 25 days in a month which brought his monthly income to Rs.2,500/-. We accordingly fix his monthly income at Rs.2,500/- for assessment of compensation. 7. It is proved that appellant suffered serious injuries and underwent hospitalisation for 33 days on different occasions. Tribunal awarded compensation for loss of earning for a period of two and a half months only. It is only reasonable to think that having sustained serious injuries as above stated and undergone inpatient treatment for a total of 33 days, appellant would not have been able to work atleast for a period of four months. In the facts and circumstances of the case, appellant is entitled to get compensation for loss of earnings for a period of four months at the rate of Rs.2,500/- per month. MACA No.1664/2004 4 Compensation payable on that count comes to Rs.10,000/- as against Rs.3,750/- awarded by the Tribunal. Additional compensation payable on that count is Rs.6,250/-. 8. We shall refer to the compensation awarded for disability and loss of earning power. Ext.A8 is the disability certificate. There was partial paralysis of right shoulder and right radial nerve. Taking that aspect, disability is certified as 38%. Tribunal accepted that and for the purpose of assessment of compensation on that head, the net income of the appellant was fixed as Rs.1,000/- and taking '16' as the multiplier, Rs.72,960/- was awarded. We found that the monthly income of the appellant was Rs.2,500/-. Based on that finding, appellant is entitled to get compensation for disability and loss of earning power which, taking the percentage of disability and multiplier accepted by the Tribunal comes to Rs.1,82,400/-[(Rs.2,500x12x16x38)/100]. Less the sum of Rs.72,960/- already awarded, additional compensation due for disability and loss of earning power is Rs.1,09,440/-. 9. It is then contended by learned counsel that compensation awarded on other counts are also meagre. Learned counsel contended that appellant had to make several trips to Kovai Medical Mission Hospital, MACA No.1664/2004 5 Coimbattoor incurring transportation charges and that appellant had produced documentary evidence to prove the same. It is true that some vouchers and receipts are produced to prove taxi charges but mere production of those documents is not sufficient. Those documents are not properly proved. Moreover, we note that towards transportation charges Tribunal awarded Rs.10,000/-. Taking into account the acceptable medical bills, Rs.61,195/- was awarded for treatment expenses. A further sum of Rs.5,000/- was awarded for future treatment expenses. For pain and suffering undergone, Tribunal awarded Rs.20,000/-. Tribunal awarded Rs.1,000/- for extra nourishment, Rs.250/- for damage to clothing and Rs.2,500/- for expenses of the bystander. We are satisfied that compensation awarded on those counts in the facts and circumstances of the case are just and fair and no interference is required. Thus, additional compensation payable to the appellant is Rs.1,15,690/-. 10. Learned counsel for appellant contends that the rate of interest (6%) awarded by the Tribunal is low. Rate of interest being within the discretionary power of the Tribunal, of course to be exercised judicially we are not inclined to interfere with the discretion exercised by the Tribunal as it is not shown to be illegal or arbitrary. But the ppellant will get interest at the rate of 7.5% per annum, considering the present rate of bank interest, on the additional compensation found payable. MACA No.1664/2004 6 Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellant is allowed to realize a further sum of Rs.1,15,690/- (Rupees One lakh, fifteen thousand, six hundred and ninety only) with 7.5% interest per annum from date of application till realization from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the vehicle is directed to deposit the said amount in the Tribunal. On such deposit, appellant is permitted to withdraw the same. J.B.KOSHY, Acting Chief Justice. THOMAS P.JOSEPH, Judge. cks