Kunjumon vs T.A. Shazudheen, Thazathu Vaipil House Erumely Po., Oriental Insurance Co., Ltd., Divisional Office, Baker Jn., Kottayam and Mathew

Joseph Francis, J.—The appellant is the claimant in O.P. (M.V.) No. 1906 of 2003 on the file of the Additional Motor Accident Claims Tribunal, Kottayam. The above petition was filed seeking compensation for the personal injuries sustained by the appellant in a motor accident on 15.6.2003. The case of the appellant is as follows. The appellant, aged 48 years, was riding his motor cycle No. KEV 3550 from Erumeli to Pulikunnu through Ranni-Mundakayam road and when he reached at Manjalaravipalam at about 4.45 p.m., a bus bearing Reg.No.KL-3D/9111 came from the opposite direction in a rash and negligent manner and hit against the motor cycle. The appellant sustained serious injuries.

The accident was due to the rash and negligent driving of the third respondent, who was driving the bus. First respondent was the owner and 2nd respondent was the insurer of that bus. The appellant claimed Rs. 2,00,000/- as compensation.

Respondents 1 and 3 filed written statement contending that the accident was due to the negligence of the appellant. Second respondent filed written statement admitting the policy of the bus and contended that the accident was not due to the negligence of the third respondent and that the compensation claimed is excessive.

Before the Claims Tribunal, no oral evidence was adduced by both sides. Exts.A1 to 13 were marked on the side of the appellant. The learned Claims Tribunal on considering the evidence found that the accident was due to the rash and negligent driving of the 3rd respondent and awarded a compensation of Rs. 1,39,000/- together with interest at the rate of 6% per annum from the date of the petition till the date of realisation from the respondents and the 2nd respondent was directed to deposit the amount as the insurer of the bus. Being dissatisfied with the quantum of compensation awarded, the appellant filed this appeal.

Heard learned counsel for the appellant and learned counsel for the Insurance Company.

Learned counsel for the appellant submitted that the compensation awarded is very low and that the appellant/appellant is entitled to get enhanced compensation. Learned counsel for the Insurance Company supported the award.

In the accident, the appellant, aged 48 years, sustained serious injuries and he was taken to Medical College Hospital, Kottayam and thereafter he was treated at Government Hospital, Erumeli. The medical records show that in the accident the appellant had sustained Type II open supra condylar/inter condylar fracture right femur with wound communicating the joint. Ext.A5 is a discharge card issued from Medical College which would prove that the appellant was admitted in the hospital on 15.6.2003 with the afore mentioned injuries and he was treated by wound debridement and external fixator application. Antibiotics and analgesics were administered and he was discharged on 26.6.2003. Ext.A6 is the discharge card issued from Community Health Centre, Erumeli, which indicates that the appellant was admitted in the hospital on 17.7.2003 with severe discharge. He was treated there and was discharged on 4.8.2003. Ext.A7 is an outpatient ticket dated 4.8.2003, which would indicate that the appellant was seen at Medical College Hospital, with complaint of bleeding from lower pin one month and 20 days after trauma. He was advised for C & D compression dressing and pressure bandage. Ext.A8 is a discharge card issued from Medical College hospital, Kottayam, which shows that the appellant was admitted there on 5.8.2003 with complaint of bleeding from the fracture site. Exploration and ligation were done in consultation with plastic surgeon. Pins were removed and A.K. Cast given and he was discharged on 18.8.2003. Ext.A9 is another O.P. ticket dated 11.11.2003, which would indicate that he was brought to the hospital on that day and treated with antilogars bone marrow injection and grovi-to-toe cast given and advised to keep limb elevated. Ext.A10 is an O.P. ticket issued from Taluk Head Quarters Hospital, Kanjirappally dated 1.2.2004 which would show that the appellant went to the hospital with complaint of pain with swelling. Ext.A15 is an out patient ticket issued from Medical College hospital, Kottayam, dated 10.3.2004 which shows that he had complaint of pain.

Ext.A11 is the disability certificate issued from the Medical Board of Medical College Hospital, Kottayam dated 1.12.2004 stating that the appellant was examined by them and found that he was suffering from post traumatic sequelao of Type III open supra condylar inter condylar fracture of right femur with 3 cm shortening of right femur due to malunion at the fracture site with 26 degree lateral angulation with fibrous ankylosis of right knee with jog of flexion possible at knee with gross wasting of thigh and leg muscles and because of these difficulties the patient is having a disability of 40% under moderate category. The learned Claims Tribunal took 15% as the percentage of disability mainly on the ground that the disability certificate was not properly proved. According to the appellant, at the time of accident he was working as a road tarring worker and was getting a daily wage of Rs. 180/-. Considering the nature of work done by the appellant and the nature of injuries sustained by him, we are of the view that 30% can be accepted as the percentage of permanent disability and loss of earning power of the appellant. The Claims Tribunal has taken 13 as the suitable multiplier, which is the correct multiplier. Considering the nature of work done by the appellant, his monthly income can be taken as Rs. 4,000/- per month instead of Rs. 2,500/- assessed by the Tribunal. Calculating on that basis, the appellant is entitled to get Rs. 1,87,200/- (4000 x 12 x 13 x 30/100), as compensation for disability and loss of earning power instead of Rs. 58,500/- awarded by the Tribunal. Rs. 28,000/- can be awarded towards compensation for loss of earning for 7 months in the place of Rs. 17,500/- awarded by the Tribunal. Taking into consideration the nature of injuries and the treatment undergone, we are of the view that Rs. 50,000/- can be awarded towards compensation for pain and suffering instead of Rs. 20,000/- awarded by the Tribunal. The compensation awarded under the other heads is just and reasonable and therefore we are not interfering with that part of award. Thus in total the appellant is entitled to get Rs. 1,69,200/- as additional compensation.

Accordingly this appeal is allowed in part allowing the appellant/petitioner to realise an additional compensation of Rs. 1,69,200/- together with interest at the rate of 7.5% per annum from the date of the petition till the date of deposit from the respondents. Second respondent is directed to deposit the amount before the M.A.C.T., Kottayam within three months from this date. There is no order as to cost.