Kerala High CourtAntony vs Mathew Tony K.A on 22 January, 2010Bench:R.Basant,M.C.Hari RaniIN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 929 of 2008()


1. ANTONY, AGED 49 YEARS, S/O.VAKKACHAN,
                      ...  Petitioner

                        Vs



1. MATHEW TONY K.A., KOOTTUNGAL HOUSE,
                       ...       Respondent

2. K.E.PIOUS, KURISINGAL HOUSE,

3. THE UNITED INDIA INSURANCE CO.LTD.,

4. E.J.MATHEW ROY, S/O.YESHUDAS,

5. THE ORIENTAL INSURANCE CO.LTD.,

                For Petitioner  :SRI.P.M.JOSHI

                For Respondent  :DR.ELIZABETH VARKEY

The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :22/01/2010

 O R D E RR.BASANT & M.C.HARI RANI, JJ.----------------------------------------------
                 C.M.Application No.926 of 2008
                                     &
                     M.A.C.A.No.929 OF 2008-----------------------------------------------------
            DATED THIS THE 21st DAY OF JANUARY, 2010

                    O R D E R/J U D G M E N T

Basant, J.This petition is to condone the delay of 119 days in filing an

M.A.C.Appeal. Heard. We take a lenient view. Petition allowed.

Delay condoned.M.A.C.A.NO.929/082.    Injured/claimant is the appellant.           He had suffered

injuries in a motor accident which took place on 27.9.2000. Upper

end of right tibia suffered an injury. It was a displaced fracture.

He was a mason by profession. He very reasonably claimed that

his monthly income was Rs.1,500/-. He was aged 42 years at the

relevant time. He was an inpatient for a period of five days.

Plaster of paris long leg cast was applied. It was removed only on

30.11.2000. According to the appellant, there was limitation of

flexion of the right knee consequent to the injury. He had to

undergo physiotherapy for some period of time, even after active

treatment.      He claimed a total amount of Rs.1.25 lakhs as

compensation. The Tribunal on an anxious consideration of all theM.A.C.A.NO.929/08            -2-relevant inputs proceeded to pass the impugned award directing

payment of a total amount of Rs.22,273/- as per the details shown

below, which are available in paragraph 9 of the award.Heads                                 Amounts awarded

Medical expenses                      : Rs. 5,273.00

Transportation & damage to clothes    : Rs.       500.00

Attendant expenses &

extra nourishment                     : Rs.     1,500.00

Shock, pain & sufferings              : Rs. 10,000.00

 Loss of earning for two months       : Rs.      3,000.00

Loss of amenities & conveniences      : Rs.      2,000.00

                                      -----------------------------

                  Total               : Rs. 22,273.00

                                      =============The compensation amount was directed to be paid along with

interest at the rate of 7.5% p.a.3.    We have heard both counsel. The learned counsel for

the appellant submits that the appellant is aggrieved by the

impugned award.        What is the grievance?         First of all it is

contended that the compensation awarded under the head of pain

and suffering is too low and inadequate.         Only an amount of

Rs.10,000/- has been awarded. Taking into account the period of

hospitalisation, the fact that long leg POP cast was applied and

was removed only after the elapse of a period exceeding twoM.A.C.A.NO.929/08           -3-months from the date of the accident and considering the fact

that there was limitation in flexion of the knee and consequent

obligation to undergo physiotherapy, reasonable and higher

amount must have been awarded as compensation, it is

contended. Taking the totality of circumstances into account, we

find merit in this contention.4.    The learned counsel then contends that the appellant

was a mason. The accident had taken place on 27.9.2000. The

long POP cast was removed only on 30.11.2000. But the Tribunal

had reckoned loss of earnings only for a period of two months.

The nature of employment of the appellant - as a mason obliging

him to physically exert himself standing, was not taken into

reckoning by the Tribunal at all. The Tribunal was unrealistic in

assuming that involuntary unemployment could have been only

for a period of two months. We are persuaded to agree in the

facts and circumstances of this case, considering the nature of the

injury and treatment as also the nature of employment of the

appellant, that there must have been involuntary unemployment

for a period of four months.5.    The learned counsel for the appellant finally contends

that during the period of treatment until the physiotherapy wasM.A.C.A.NO.929/08            -4-over, the appellant had been put to inconveniences and loss of

amenities.     Quality of life which he was able to enjoy was

impaired considerably even after completion of the immediate

period of treatment. For this, only an amount of Rs.2,000/-has

been awarded. Further amounts are liable to be awarded under

this head, even assuming that the appellant has not succeeded in

proving permanent disability as a result of the accident and

injury, it is contended. The learned counsel points out that the

Doctor had certified that limitation in flexion of the knee had

resulted and had advised to undergo physiotherapy.          We find

force in this contention. We are satisfied that a higher amount

must have been awarded under the head of loss of amenities.6.    On the basis of the above discussions, we come to the

conclusion that the appellant is entitled to the following further

amounts in addition to the amount awarded by the Tribunal.1.    Shock, pain and
        suffering -            Rs.12,500/- minus
                               Rs.10,000/-         = Rs.2,500/-2.    Loss of earnings
        Rs.1,500x4           =Rs.6,000/- minus
                               Rs.3,000/-          = Rs.3,000/-3.    Loss of amenities
         and conveniences     Rs.5,000/- minus
                              RS.2,000/-           = Rs.3,000/--------------------Total                       = Rs.8,500/-
                                                     =======M.A.C.A.NO.929/08           -5-7.    In the result:

         (a)     this appeal is allowed in part.

         (b)     The appellant is found entitled to afurther amount of Rs.8,500/- (Rupees

                 Eight Thousand and Five Hundred only)

                 in   addition   to  the   amount    already

                 awarded by the Tribunal.(c)     Needless to say the entire amount of

                 compensation shall bear interest from the

                 date of the petition to the date of payment

                 at the rate of 7.5% p.a. as directed by the

                 Tribunal.(d)       All other directions of the Tribunal are

                 upheld.R.BASANT, JUDGE.M.C.HARI RANI, JUDGE.dsn