## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN**
**& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935**
**MACA.No. 55 of 2009 ( )**
**---------------------------------**
**AGAINST THE AWARD IN OP(MV) 1558/1996 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM**
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## **APPELLANT(S) IN MACA/PETITIONER IN OP (MV):**
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## **SINGI.K.S, S/O. SREENIVASAN, KORASSERY HOUSE, THOPPUMPADY, KOCHI, ERNAKULAM DISTRICT.**
## **BY ADV. SRI.A.P.SUBHASH**
## **RESPONDENT(S) IN MACA/RESPONDENTS IN OP(MV):**
**----------------------------------------------------------------------------**
- **1. SHALO ANTONY, S/O. ANTONY, THAIPARAMBIL HOUSE, MOOLAMKUZHY DESOM, RAMESWARAM VILLAGE, KOCHI. (DELETED)**
**2. VIKRAM PILLAI, MANATHARA VEEDU, VARAVILA.P.O, CLAPPANA, KARUNAGAPPALLY, KOLLAM DISTRICT.**
## **3. MANAGER, NATIONAL INSURANCE**
**COMPANY LTD., P.B. NO. 157, KOLLAM.**
**4. THE ORIENTAL INSURANCE COMPANY LTD., THRIPPUNITHURA, ERNAKULAM.**
- **RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 20/3/2013 IN IA.761/13 IN MACA 55/09.**
**R4 BY ADV. SRI.P.V.JYOTHI PRASAD**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**PJ**
S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.
----------------------------------------------------------------M.A.C.A. No.55 of 2009 -----------------------------------------------------------------Dated this the 2[nd] day of September, 2013 J U D G M E N T
## K. Ramakrishnan, J
The appellant is the claimant in O.P.(M.V). No.1558/1996, on the file of the Motor Accidents Claims Tribunal, Ernakulam. He filed the application for compensation for the injuries and consequential disabilities sustained by him in a motor vehicle accident, caused on account of the negligent driving of the vehicle by the first respondent (who has been deleted susequently as per order in I.A. No.761/2013), owned by the 2[nd] respondent and insured with 3[rd] respondent. After considering the evidence on record, the tribunal found that, the accident occurred due to the negligence of the driver of the vehicle insured with the 3[rd] respondent and awarded a total compensation of 72,630/- as follows:₹
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|**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**|
|---|---|---|
|1.|Transportation, hospitalisation,<br>attendant expenses, extra<br>nourishment & damages to<br>clothing|6000|
|2|Medical expenses|29130|
|3|Loss of earnings<br>(wrongly adopted as 4000)|4500|
|4|Pain and suffering|18000|
|5|Discomforts and inconveniences|15000|
||Total|72630|
Dissatisfied with the quantum of compensation awarded, the appellant has preferred the appeal before this court.
2. Since the tribunal did not accept the disability certificate produced by the appellant, on the basis of request made by him, he was referred to General Hospital, Ernakulam, for assessing his occupational disability by this court and the Medical Board assessed the disability and forwarded the disability certificate to this court, which is made part of the records of this court.
3. We have heard the counsel for the appellant and counsel for the insurance company.
4. The counsel for the appellant submitted that the appellant was working as a booking clerk in a private concern by name O.K.Transport Company,
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Mattanchery and getting an income of ₹ 2,000/- per month and he had produced documetns to prove this fact and this was proved through PW1 in this evidence as well. But, the tribunal has taken the monthly income as ₹ 1,500/- only, which is incorrect. Further, the appellant sustained severe injureis and he was treated as inpatient for 60 days and the treatment continued up to 11.06.1996 and even at that time, he was advised to do restricted work. But, the tribunal had taken only 3 months loss of earning, which is also on the lower side. The amount awarded under the head pain and suffering, loss of amenities in life, bystanders expenses are also on the lower side. Further, no amount was awarded under the head loss of earning capacity, especially when the disability certificate was produced by the appellant before the tribunal and proved through PW2 the doctor issued the same, which will go to show that he was having 11% disability. So according to him, the appellant is entitled to get enhancement of all heads.
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5. On the other hand, the counsel for the insurance company submitted that in the absence of any evidence adduced on the side of the appellant to prove his income, the tribunal was perfectly justified in fixing the income notionally as 1,500 per month. Further, the₹ tribunal has given reason for not accepting the disability certificate given by PW2, and rightly rejected the same. Even assuming that, the Medical Board has assessed 11% disability, there is nothing to show that, this will affect his earning capacity and as such, the appellant is not entitled to get any amount under the head loss of earning capacity. The total compensation awarded by the tribunal is just and proper and no interference is called for at the hands of this court.
6. We have considered the rival contentions of both parties.
7. It is true that the petitioner was examined as PW1 and gave evidence regarding his employment and income. But, no acceptable documents were produced to
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prove his income. So, under the circumstances, the tribunal was perfectly justified in fixing the notional income of the appellant as 1,500/- per month. Further,₹ the accident occurred on 10.12.1995, the monthly income
₹ 1,500/- fixed by the tribunal in the absence of any acceptable evidence cannot be said to be on the lower side as well. So, we are not inclined to enhance the monthly income fixed by the tribunal.
8. It is seen from the documents produced that he was treated as inpatient for 57 days continuously on the first occasion and thereafter for 3 days and even on 11.06.1996, he was undergoing treatment and he was advised to do only restricted work, that shows that till 11.06.1996 he may not be able to do any work and even thereafter also he may not be able to do any work for some more time. So, we are taking the period of nonworking on account of the injuries sustained as 8 months instead of three months taken by the tribunal. So, the appellant will be entitled to get 12,000/- under the head₹
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loss of earning during the period of treatment instead of ₹ 4,500/- (wrongly typed as 4,000/-) awarded by the₹ tribunal.
9. Considering the nature of injuries sustained and the period of treatment undergone, a consolidated amount of 6,000/- awarded by the tribunal₹ under the head transportation, hospitalisation, attendance expenses, extra nourishment and damage to clothing appears to be on the lower side. So we award another amount of 6,000/- more under that head. ₹
10. The petitioner sustained the following
## injuries:
i. Clinically tempero mandibular joint dislocation bilaterally,
ii. Compound fracture of right femur with lacerated wound on the front of ® thigh,
iii. Clinically fracture of both bones of ® leg,
- iv. Fracture of right finger at proximal phalanx,
- v. Bleeding from mouth.
Further the disability certificate issued by the Medical Board will go to show that he is having the following
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## complaints on clinical findings:
## Present complaints:
1. Flexion of ® knee not complete
2. Cannot stand prolonged time
3. ® middle finger weak
4. Dental complaints
Clinical Findings:
Ortho- 1. Flexion of ® knee limited to 80 degree ® knee squatting difficult - not possible.
2. ® middle finger grip not full.
3. Deformities of ® tibia leg. Thickening middle of tibia
On Dental examination:
1. missing 6.
2. Mouth opening normal
3. Partial Denture 1
They have assessed the permanent physical disability as 11%. Considering the fact that he is having some limitation of movement of his knee and difficulty in squatting and having difficulty to right middle finger grip, he may have some difficulty in doing his work. This will affect his earning capacity as well. So, we are taking 11% disability assessed by the Medical Board as
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occupational disability and taking 18 as multiplier as he being 22 years at the time of accident, he will be entitled to get an amount of 35,640/- (1,500x12x18x11%) under₹ the head loss of earning capacity and we award the same under that head.
11. Considering the injury sustained, disability undergone and the period of continuous treatment undergone by him, the amount awarded under the head pain and suffering is also on the lower side and we enhance the same to 25,000/- from 18,000/-. He had₹ ₹ suffered 11% disability and the disability is even now subsisting long after the accident as to evident from the disability certificate issued by the Medical Board. He was aged only 22 years at the time of the accident. He will have to live with these difficulties for the remaining period of his life. This may have some impact on his personal life as well. So, we enhance the amount awarded under the head loss of inconvenience and amenities to ₹ 25,000/- from 15,000/- awarded by the tribunal. We₹
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are not inclined to enhance any amount under other heads, as the amounts awarded under other heads are just and proper. In all, the appellant will be entitled to get an additional compensation of 66,140/-, which we₹ rounded to 66,500/- and this amount is liable to be paid₹ by the 3[rd] respondent insurance company with 9% interest from the date of the claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well.
With the above modification of the impugned award of the tribunal, the appeal is disposed of.
Sd/-
S. Siri Jagan, Judge
Sd/-
K. Ramakrishnan, Judge
// True Copy //
P.A. to Judge
ss
