IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 MFA.No. 219 of 2003(E) --------------------------------- OPMV.4235/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: PETITIONER --------------------- K.P.ABOOBACKER, AGED 48 YEARS, SON OF K.S.PAREED, KALATHIL VEEDU, KUTHIATHODE P.O., KODAMTHURUTH, ALAPUZHA. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.NITHYA.K. RESPONDENTS: RESPONDENTS ------------------------ 1. THE CHAIRMAN, LORD KRISHNA BANK LTD., KALOOR, COCHIN-17 2. ANTONY S/O. OUSEPH, KANICHUKUNNATH HOUSE NEAR KOTTAPURAM TOLL, T.K.S. PURAM, METHALA VILLAGE, KODUNGALLUR TALUK. 3. THE ORIENTAL INSURANCE CO.LTD., ENSIGN BLDG., COCHIN-11. ADV. SRI.VPK.PANICKER FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.219 OF 2003-E ---------------------------------------------------- Dated this the 27th day of June, 2008. JUDGMENT Koshy, J: Appellant/claimant at the age of 42 sustained very serious injuries in a motor accident on 11.11.1996. He filed an application for compensation claiming an amount of Rs.6,62,750/=. The Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent and directed the insurance company to deposit the amount. The total compensation awarded including reimbursement of medical expenses was only Rs.1,67,500/=. The only dispute is regarding the quantum of compensation. The claimant was aged 42 years at the time of the accident. The Tribunal fixed multiplier as 15 taking guidance from 2nd schedule. We see no ground to change the same. According to the appellant, he was doing business in prawn peeling and getting Rs.5,000/= as monthly income. He proved the same by oral evidence. There is no counter evidence. The Tribunal fixed his monthly income as Rs.1,500/=. The accident occurred was in the year 1996. He was maintaining a family. Even if no MFA.219/03 . 2 documentary evidence was produced to show that his income is not substantial, we can presume that from prawn peeling work he was earning at least Rs.125 to 150 per day and for 25 days work in a month, his earnings will be more than Rs.3,500/=. Considering the circumstances, we are of the opinion that at least Rs.3,000/= can be fixed as his monthly income. The injury sustained by him is proved by Ext.A5 wound certificate and Ext.A6 discharge certificate. Ext.A6 discharge certificate is issued by the Medical Trust Hospital, Ernakulam and signed by Ortho specialist in that hospital. Ext.A5 shows that he has the following injuries: Left femur - Segmented fracture femur at the junction of middle and upper 3rd and middle and lower 3rd. Left leg - comminuted fracture both bones left leg at the junction of middle and upper third. Fracture spine of scapula and aeromon right with fracture 6th rib. diagnosis: Segmental fracture left femur. Type I open fracture both bones left leg. Fracture right scapula 6th rib. Ext.A6 would reveal that he had been in the hospital as inpatient for 45 days, that POP cast was given, bone grafting was done, A.K. slab was also applied on left side. He was discharged only on 4.12.1996 and he was in the hospital for 25 days as inpatient. It MFA.219/03 . 3 also shows that he was readmitted again on 21.3.1997 for adjustment of screw and bone grafting and that was done under general anesthesia on 22.3.1998. Again he was discharged on 22.3.1997. Again he was readmitted on 28.4.1997 for removal of plaster as plaster was applied on 4.4.1997 as fracture took long time for unification. He was treated up to 18.12.1997. The Tribunal found that he was under regular treatment for 11 months. PW2 doctor certified that there is 35% disability. Even though disability was sought to be proved by him, the Tribunal did not accept the same. PW2 has not treated the patient and many of the disabilities mentioned in the disability certificate were not stated in the medical certificate. We are of the opinion that 35% disability is excessive. However considering the nature of the injuries including segmental fracture at middle 3rd upper 3rd and middle 3rd lower 3rd junction of femur and fracture of both bones of left leg, 20% disability can be assessed. For 20% disability, compensation payable will be Rs.1,08,000/= The Tribunal has granted for 20% disability only Rs.27,000/=. Therefore, additional amount payable will be Rs.81,000/= for disability and loss of earning capacity. The Tribunal has granted actual loss of earnings for 11 months, that is during the period of treatment. It is contended that about two years he is unable to do work. Since we have increased monthly income for 11 months, even without enhancing number of non MFA.219/03 . 4 earning days, he is entitled to an additional amount of Rs.16,500/=. It is contended that since inplants were applied, he will have to undergo treatment for removal of the same. No amount was awarded for future treatment. It is also submitted that for actual medical expenses Rs.76,582/= was awarded but bills produced was Rs.76,561.14. He was treated for long period of time. Many expenses are not covered by the bills. Before he was able to walk, he has to travel in special vehicles. There will be several expenses in the hospital which are not covered by bills. Taking all these, we award Rs.2,500/= more for actual medical expenses incurred. Therefore, additional amount payable will be Rs.1,00,000/=. It is submitted that compensation under all other heads are very law considering the total amount of compensation awarded. The 3rd respondent insurance company is directed to deposit Rs.1,00,000/= should be deposited with 7% interest from the date of application till the date of deposit over and above the decreed amount. On deposit of the same, the appellant is allowed to withdraw the same. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MFA.219/03 . 5 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.219 OF 2003-E JUDGMENT 27th day of June, 2008. MFA.219/03 . 6