IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 MACA.No. 1494 of 2006() ----------------------- OPMV.3371/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER. ------------------------------------ A.RENJAN KUMAR, S/O.KRISHNA SHENOI, EDAVAZHIKKAL HOUSE, THANDATHUMKADAVU, VARAPPUZHA 683 517. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ K.J. RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. MR.K.M.NAZAR, KOTTANATTU HOUSE, MAFAMPILLY P.O., ALUVA. 2. HARIS, MALLISSERY VEETTIL, KUNNEPPARAMBU KARA, VAZHAKKALA. 3. THE NEW INDIA ASSURANCE CO.LTD., ERNAKULAM. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------- M.A.C.A.No.1494 OF 2006 ------------------------------------- Dated 31st October, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident on 6.6.1998. The Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent insurance company. Only quantum of compensation is disputed in this appeal. Ext.A4 is the wound certificate issued from Ernakulam Medical Centre, Palarivattom which shows the following injuries: “1. Lacerations on (R) forearm with degloving of skin on (R) ankle and (R) leg. 2. Comminuted open fractures of (R) ulna (R) Lateral malleolus. 3. Rupture of extensor hallucis longus, extensor digitorium longus tendons and anterior tibial vessels. Wound debridement, open reduction and internal fixation of ulna and external fixation of ankle done. X-ray (R) forearm – comminuted fracture ulna. X-ray (R) ankle – Comminuted fracture lateral malleolus.” MACA.1494/2006 2 He was treated as an inpatient in the hospital for 23 days. He suffered comminuted fracture of right ulna as well as comminuted fracture of right lateral malleolus. Open reduction and internal fixation were done for the ulnar fracture while external fixation was done for the malleolus fracture. Ext.A5 is the treatment certificate issued from the hospital. The fixation was removed on 9.11.1998. The certificates also show that skin grafting as well as bone grafting were done for the fractures. Another certificate was issued in May 1999 which shows that though the ankle injury was healed, the right elbow fracture failed to unite and that necessitated bone grafting. It was certified that the appellant is having a functional disability of 15% on account of loss of elbow mobility. The Tribunal did not grant any compensation for permanent disability, but, for functional disability Rs.5,000/= was awarded. Considering the injuries suffered and considering the fact that there was fracture of ulna and external fixation was done for malleolus fracture and also considering the functional disability of right elbow which will affect his ability and mobility, we are of the view that compensation ought to have been granted at least for 5% disability. According to the appellant, he was running a medical shop, but, no evidence was adduced to show MACA.1494/2006 3 the same. Therefore, the Tribunal has taken only Rs.1,500/= as the monthly income. He was maintaining a family. Taking at least Rs.100/= as his daily income and he would have got at least 25 days' work in a month, we fix Rs.2,500/= as the monthly income. He was aged 48 at the time of the accident. Taking guidance from the second schedule, 13 is the apt multiplier. If that be so, compensation payable for permanent disability will be Rs.19,500/= (2500 x 12 x 5 x 13). The Tribunal awarded Rs.5,000/=. Therefore, the 100 additional compensation payable under this head will be Rs.14,500/=. The Tribunal has awarded only Rs.3,000/= for loss of actual earnings. Since there was fracture and internal fixation was done and he was treated as an inpatient for 23 days, we are of the view that for three months he cannot do any work. Therefore, he is entitled to an additional amount of Rs.4,500/= under that head. Rs.20,000/= was awarded for pain and suffering. Medical bills were reimbursed. We are of the opinion that no enhancement is required in the compensation awarded under other heads. Therefore, the additional compensation payable will be Rs.19,000/=. The above additional amount of Rs.19,000/= should be deposited by the third 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 MACA.1494/2006 4 deposit of the amount, the appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE tks