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2013 DIGILAW 720 (KER)

P. K. Jayakumar v. Jibin

2013-08-20

THOMAS P.JOSEPH

body2013
Judgment : 1. First respondent is served. There is no response. Second respondent appears through counsel. 2. This appeal is against the award dated 21.01.2013 in O.P (M.V).No.341 of 2008 of the Motor Accident Claims Tribunal, Muvattupuzha (for short, "the Tribunal"). Appellant suffered injuries in a motor accident on 11.11.2007. Autorikshaw owned and driven by the first respondent hit the motor cycle which the appellant was riding. The Tribunal found that the accident occurred due to the negligence of the first respondent and assessed compensation payable to the appellant at Rs.76,800/-. Upholding contention of the second respondent that the first respondent was not having a badge at the time of accident and that amounts to violation of policy condition, the second respondent was permitted to recover the amount on payment of the same to the appellant. Appellant is aggrieved by the quantum of compensation. 3. Learned counsel contends that the income of the appellant and the compensation assessed are low. 4. Learned counsel for the second respondent contended that no further enhancement of compensation is required. 5. Appellant was aged 23 years at the relevant time, a marble worker. He claimed monthly income of Rs.5,000/ but, no evidence was produced. The Tribunal has fixed monthly income at Rs.2,500/-. Having regard to the age and occupation of the appellant, his monthly income could be fixed at Rs.3,000/-. 6. Paragraph 9 of the award states injuries suffered by the appellant. It includes open right knee injury with patellar fracture, cervical chip fracture and partial amputation of right ring finger. Appellant underwent inpatient treatment for six days followed by outpatient treatment. It is likely, having regard to the nature, extent and site of the fracture that the appellant was not able to work for four months (as against three months fixed by the Tribunal). Loss of earnings comes to Rs.12,000/-. Less Rs.7,500/- already awarded, additional compensation payable on that count comes to Rs.4,500/-. 7. Compensation awarded for pain and suffering is only Rs.12,000/-. I have referred to the nature, extent and site of the fracture the appellant suffered and the period of treatment. Having regard to the above, a further sum of Rs.3,000/- is awarded on that count. 8. Treatment expenses is awarded strictly as per medical bills (Rs.17,744/-). Having regard to the nature, extent, site of fracture and period of treatment, a further sum of Rs.2,000/- is allowed on that count. 9. Having regard to the above, a further sum of Rs.3,000/- is awarded on that count. 8. Treatment expenses is awarded strictly as per medical bills (Rs.17,744/-). Having regard to the nature, extent, site of fracture and period of treatment, a further sum of Rs.2,000/- is allowed on that count. 9. Ext.A9 is the certificate issued by PW1, Orthopedic Surgeon recommending disability of the appellant as 8%. The Tribunal fixed the disability at 5% and awarded Rs.25,500/- as compensation for disability. 10. It is seen from Ext.A9 that flexion was possible for the right knee up to 80-90 from 170-180 degree extension and that contributed to 5% of whole body disability. Right ring finger was deformed and ankylosed inflextion at PIP joint which contributed to 3% of the disability. Thus, PW1 assessed disability at 8%. Ext.A9 shows that the appellant was examined by PW1 on 30.05.2011. It would appear that 8% disability assessed by PW1 though as per the McBride Scale as 8% adding up 3% and 5% which I have referred above. That, I am inclined to think is not the proper way of assessing whole body disability. Having regard to the deficiencies stated in Ext.A9, percentage of whole body disability can be fixed as 8%. @Rs.3,000/-per month, compensation payable for disability is Rs.36,720/- (3000x12x17x6/100). Less Rs.25,500/-already awarded, additional compensation payable on that count come to Rs.11,220/-. Thus additional compensation payable to the appellant comes to Rs.20,720/-. That amount will carry interest @9% per annum from the date of application till recovery. 11. The Tribunal found violation of policy condition and consequently permitted the second respondent to recover the amount from the first respondent on payment of the same to the appellant. So far as finding of the Tribunal regarding violation of the policy condition and right for recovery granted to the second respondent stands, that should apply to the additional compensation awarded by this judgment as well. Resultantly this appeal is allowed in part as under: (i) In modification of the award dated 21.01.2013 in O.P(M.V).No.341 of 2008 of the Motor Accident Claims Tribunal, Muvattupuzha the appellant is allowed to recover a further sum of Rs.20,720/-(Rupees Twenty Thousand Seven Hundred and Twenty Only) with interest @9% per annum from the date of application till recovery from the respondents. (ii) The second respondent is directed to deposit the amount in the Tribunal within two (2) months from this day. (ii) The second respondent is directed to deposit the amount in the Tribunal within two (2) months from this day. (iii) It is directed that so far as finding of the Tribunal regarding violation of the policy condition and right of recovery granted to the second respondent stands, the second respondent is permitted to recover the additional compensation awarded by this judgment also from the first respondent on payment of the same to the appellant. (iv) Parties shall suffer their cost in the appeal. All pending interlocutory applications will stand dismissed.