IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MACA.No. 51 of 2003() --------------------- OPMV.286/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- M.K.VIMAL KUMAR, S/O.LAXMANAN, 35 YEARS, KUNNINAM KANDI, PUZHATHI AMSOM, PODIKUNDU DESOM, P.O.PUZHATHI, KANNUR. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): RESPONDENTS -------------------------- (*) 1. M.P.AYOOB, S/O.THARIKUTTY, M.P.HOUSE, NILAMUTTAM, P.O.IRIKKUT, TALIPARAMBA, KANNUR.(DELETED) 2. U.K.SHAJI, S/O.KUNHIRAMAN, 26 YEARS, UPPOTTU KUZHIPPATH HOUSE, KADALAYI, KANNUR. 3. UNITED INDIA INSURANCE CO.LTD., HOSPITAL ROAD, THALASSERY - 670101. (*)NAME OF THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 30.9.2005 IN IA NO.2646/2005. ADV. SRI.M.A.HAKIM SHAH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.51 of 2003 -------------------------------------- Dated this the 4th day of December, 2008. JUDGMENT Thomas P.Joseph, J. Appellant, a bus operator by occupation and aged 35 years at the relevant time while traveling in the car driven by the second respondent, owned by the first appellant and insured with the third respondent met with an accident on 1.7.1996 resulting in serious injuries. He alleged that the accident occurred when due to the rash and negligent driving of the second respondent, the car hit the road divider. As against a claim of Rs.7.5 lakhs, Tribunal awarded Rs.22,950/- as compensation. Claiming that compensation awarded is meager, appellant has come up in appeal. 2. Heard counsel for the appellant and contesting respondent. 3. Point for consideration is whether the appellant is entitled to get enhanced compensation. 4. Perused the relevant records. 5. The point. Ext.A2 is the copy of wound certificate and Ext.A4 is the discharge card. Ext.A3 is the out patient card issued to the appellant from Aravind Eye Hospital, Coimbatore. It is revealed that appellant suffered injury to the right eye and at the time of admission there was bleeding from right ear. He MACA No.51/2003 2 was initially brought to a hospital at Kannur wherefrom he was referred to the Medical College Hospital, Kozhikode on the same day. Ext.A4 is the discharge card issued from that hospital. Appellant suffered deep lenier injury in the right eye. Appellant underwent inpatient treatment for 17 days. Ext.A5 is the disability certificate issued by the Medical Board certifying disability of the appellant at 40%. Tribunal did not act upon Ext.A5 for the reason that though, PW2, a member of the Medical Board was examined to prove Ext.A5, appellant did not take steps to examine the ophthalmologist who was a member of the Medical Board. Another reason to reject Ext.A5 is that appellant was not referred to the Medical Board from the Tribunal instead, he voluntarily appeared before the Medical Board. PW2 stated that the right eye ball was shrunk and there was no perception of light of that eye but he had not stated in Ext.A5 that the disability is permanent. Therefore, compensation was not awarded for disability and consequent loss of earning power. Tribunal did not also accept the claim of the appellant that as bus operator, he was earning Rs.18,000/- per annum. Tribunal has taken his income as Rs.1,250/- per month and awarded Rs.3,750/- for loss of earnings for three months. Rs.12,000/- was awarded for pain and suffering and Rs.5,000/- was awarded for compensation for loss of enjoyment of amenities of life. Rs.1,700/- was awarded as bystanders expenses and Rs.500/- was awarded as transportation charges. Learned counsel contended that compensation awarded on all counts are meager. 6. It is not very much in dispute that appellant was operating bus MACA No.51/2003 3 service during the relevant time. Though he did not produce sufficient proof to prove his monthly income, considering his age and occupation and also considering the wages payable to unskilled labourers in Kerala during the relevant time, we are inclined to fix the monthly income of the appellant as Rs.2,500/-. We therefore, fix the monthly income of the appellant accordingly. 7. Evidence on record shows that appellant sustained injury to the right eye. Ext.A5 states that appellant is visually handicapped and that there was no perception of light in the right eye. Medical Board assessed the percentage of disability at 40%. It is true that it is not stated in Ext.A5 that disability is permanent. At the same time, it has also to be noted that the finding that there was no perception of light in the right eye. There is no evidence to show that there is possibility of said defect being repaired in future. We are persuaded to think that the reasons stated by the Tribunal to reject Ext.A5 are not satisfactory, considering the nature of injuries proved by Ext.A2 and the fact that appellant had undergone treatment for defect of vision and injury to the right eye at Aravind Eye Hospital as proved by Ext.A3. We therefore, accept Ext.A5 and the recommendation contained therein. Since appellant was aged 35 years at the time of accident, 16 has to be taken as the multiplier. Compensation payable for disability and consequent loss of earning power comes to Rs.1,92,000/- [(Rs.2,500x12x40x16)/100]. Appellant is entitled to get that amount. 8. It is in evidence that appellant was initially taken to a hospital at MACA No.51/2003 4 Kannur and on the same day he was referred to the Medical College Hospital, Kozhikode. Even after discharge from the Medical College Hospital, he had to attend that hospital for review, five times. Only Rs.500/- was awarded for transportation charges. Considering the number of visits to the Medical College Hospital, the distance from Kannur to Kozhikode and the possible transportation charges, we award a further sum of Rs.1,000/- on that count. 9. Appellant was inpatient at Medical College Hospital for 17 days. Thereafter he had to attend Aravind Eye Hospital. Even after discharge from that hospital he required the assistance of a bystander for some time in view of his visual impairment. Only Rs.1,700-/- (@ Rs.100/- for 17 days of inpatient treatment alone) was awarded towards expenses of bystander. We award a further sum Rs.2,000/- on that count, that being just and fair. 10. Though, it is contended by learned counsel that compensation awarded on other counts are also low, we are not inclined to accept that contention considering the amount awarded on those counts and the total amount to which appellant is found entitled. Thus, additional compensation payable to the appellant comes to Rs.1,95,000/- which will carry interest at the rate of 7.5% per annum from the date of application till realization. Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellant is allowed to realize Rs.1,95,000/- (Rupees One lakh and ninetyfive thousand only) by way of additional compensation with 7.5% interest per annum from date of application MACA No.51/2003 5 till realization from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the offending vehicle is directed to deposit that amount in the Tribunal. On such deposit, appellant is allowed to withdraw the same. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks MACA No.51/2003 6 J.B.KOSHY & THOMAS P.JOSEPH, JJ. M.A.C.A.No.51of 2003 JUDGMENT 4th December, 2008.