Kerala High CourtBijoy Xavier John vs N.P. Dilli on 7 October, 2005Author:Siri JaganBench:S.Siri JaganIN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                        PRESENT:

                              THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
                                                               &
                        THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

               TUESDAY, THE 26TH DAY OF FEBRUARY 2013/7TH PHALGUNA 1934

                                             MACA.No. 1918 of 2006 ( )
                                                   -------------------------
AGAINST THE ORDER/JUDGMENT IN OPMV.1714/2000 of SPL.C SPE/CBI-I&3 ADD.DC.ADD
                                    MACT, ERNAKULAM DATED 07-10-2005


APPELLANT(S)/APPELLANT/PETITIONER::
--------------------------------------------------------------------

            BIJOY XAVIER JOHN, AGED 30 YEARS,
            S/O.N.X.JOHN, NADUVATHEZHATHU HOUSE
            MULAVARINKKAN NAGAR, KONTHURUTHY, THEVARA P.O.
            COCHIN-13.

            BY ADV. SRI.VIVEK VARGHESE P.J.

RESPONDENT(S):
----------------------------

        1. N.P. DILLI, S/O.N.K. PADMANABHAN,
            NADUTHOPPIL HOUSE, EROOR, TRIPUNITHURA.

        2. THE UNITED INDIA INSURANCE CO.LTD.,
            JOS TRUST BUILDING, CHITTOOR ROAD, COCHIN-35.

            ADV. SRI.N.P.DILLI
            ADV. SRI.S.MAMMU

            THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
26-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:



          S.SIRI JAGAN & BABU MATHEW P.JOSEPH, JJ.

                  ==================

                    M.A.C.A.No. 1918 of 2006

                  ==================

           Dated this the 26th day of February, 2013

                         J U D G M E N TSiri Jagan, J.The claimant in O.P(M.V.).No.1714/2000 before the Motor

Accidents Claims Tribunal, Ernakulam, has filed this appeal

dissatisfied with the quantum of compensation awarded by the

Tribunal for the injuries and consequent disability suffered by

him on account of an accident caused by the negligent driving of

a vehicle owned by the 1st respondent and insured with the 2nd

respondent. The appellant suffered "deformity of the right leg

with puncture wound over the middle third and multiple

abrasion over the left thigh". On X-ray examination, it was found

that there was Type 2 compound fracture on the right tibia.

Ext.A9 disability certificate certified 12% permanent disability.

The appellant had undergone surgical processes more than once

and consequently, he was in great pain. Further, the Tribunal

fixed the monthly income for calculating loss of earning capacity

after excluding personal expenses, which could not have been

done except in death cases, is the contention raised. The

M.A.C.A.1918/06                      - : 2 :-Tribunal also went wrong in not accepting the full 12% disability

for assessing compensation for loss of earning capacity, but

limited the same to 10% wrongly. The compensation for pain and

suffering and loss of amenities in life are also on the lower side is

the contention raised.2.     We have heard the learned counsel for the insurance

company as well.3.     The injuries and the treatment undergone by the

appellant have been detailed by the Tribunal in paragraph 6 of

the award, which reads thus:"6.    Issue No.2: Ext.A6 is the copy of the wound
      certificate, which shows that there was deformity of right leg with
      puncture wound over the middle third and also multiple abrasion
      over the left thigh. On X-ray examination it was found that there
      was Type 2 compound fracture right tibia. Ext.A7 is the discharge
      summary issued from R.C.M.Hospital, Thrippunithura, which
      shows that the petitioner was admitted in the hospital on
      29.4.2000 and was discharged on 15.5.2000. There also it was
      noted that there was Type 2 compound comminuted fracture right
      tibia. It was noted that osteotomy of fibula with closed
      interlocking nailing was done under General Anaesthesia. It is
      further noted that the wounds were thoroughly debrided, washed
      and primary interlocking nailing was done. It can be seen that
      there was internal fixation and for removal of the same the
      petitioner was admitted in the very same hospital on 28.2.2002.
      The date of discharge is shown as 6.2.2002. It appears to be a
      mistake for 6.3.2002. The admission was for implant removal."It shows that the appellant had undergone several surgical

processes and in that process, he must have undergone very

M.A.C.A.1918/06                  - : 3 :-severe pain. Therefore, we enhance compensation for pain and

suffering to ` 25,000/- instead of ` 20,000/-. We are also of

opinion that the Tribunal wrongly deducted personal expenses

from his income, which could not have been done except in death

cases. We are also satisfied that the Tribunal ought to have

accepted the full 12% disability for calculating loss of earning

capacity. Without deducting personal expenses, the income of

the appellant is accepted as ` 1,500/-. Calculated thus, the

compensation for loss of earning capacity would be ` 36,720/- (`

1,500 x 12 x 12 x 17/100) instead of ` 20,400/- awarded by the

Tribunal. We are also satisfied that because of the disabilities,

the appellant would be severely handicapped in his personal

life, insofar as it will be difficult for him to walk, run and even

squat. Therefore, we are inclined to enhance the compensation

for loss of amenities, which is described by the Tribunal as

compensation for disability, inconvenience etc. to ` 15,000/-

instead of ` 8,000/-. Consequently, the appellant would be

entitled to an additional compensation of ` 28,320/- over and

above what has been awarded by the Tribunal. The said amount

would carry interest at the rate of 9% per annum from the date

M.A.C.A.1918/06                 - : 4 :-of the claim petition till the date of payment. The 2nd respondent

insurance company is directed to deposit the said amount also

within one month.The appeal is disposed of as above.Sd/-S.SIRI JAGAN, JUDGE

                                               Sd/-sdk+                           BABU MATHEW P.JOSEPH, JUDGE


          ///True copy///



                             P.A. to Judge