Joseph Poulose vs K.J. Abdulkhader Kareem, Shajimon and The New India Assurance Co. Ltd.

Pius C. Kuriakose, J.—The appellant, a driver, sustained serious injuries - lacerated wound over the forehead, over the right orbit, deformity of right thigh and right forearm, lacerated wounds over the 2nd to 4th fingers of the right hand and over left knee, and investigation revealed fracture of maxilla, fracture of nasal bone and fracture of mandible., fracture of ribs 4 to 6 on the right side and also other some injuries complains that in a road traffic accident caused by the negligence of the driver of a lorry which was duly insured with the third respondent Insurance Company. The appellant complains that the Motor Accident Claims Tribunal did not award him adequate compensation for the injuries which is sustained only on account of the negligence of the driver of the offending lorry. He pointed out that his claim was for a total amount of Rs. 5 Lakhs and the Tribunal awarded him only Rs. 298400/-. According to him, there is gross inadequacy in the compensation awarded by the learned Tribunal.

The appellant urges that the compensation awarded by the learned Tribunal under almost all the head is inadequate. He points out that the learned Tribunal was not relying on Ext.A8 disability certificate in which the permanent partial disability suffered by him by the various injuries sustained is certified as 30%. We have heard the submission of the Sri. A.N. Santhosh learned counsel for the appellant and those of Sri. P.M.M. Najeeb Khan learned standing counsel for the contesting Insurance Company.

The argument of Mr. Santhosh was that the compensation awarded by the learned Tribunal is too low. Per contra, the argument of the learned standing counsel is that the appellant cannot have any legitimate grievance regarding the adequacy of the compensation awarded by the learned Tribunal.

We have given our anxious consideration to the rival submissions addressed at the Bar. We have carefully read through the impugned award. We are in agreement with the learned counsel for the appellant that there is inadequacy in the compensation awarded to the appellant.

Having seen the nature of the injuries, we are of the view that the compensation awarded by the learned Tribunal to the appellant towards pain and suffering is inadequate and we, therefore, award to the appellant Rs. 5,000/- more towards pain and suffering.

As we notice inadequacy in the compensation awarded by the learned Tribunal towards loss of amenities, we award to the appellant Rs. 8,000/- more towards loss of amenities.

The appellant was in inpatient in hospital for 44 days. Accident was occurred in the year 2003 and according to us, the learned Tribunal did not award to the appellant adequate amount towards by stander''s expenses. We award Rs. 4,400/- more towards by stander''s expenses.

The appellant was admittedly a driver. According to the appellant, he was drawing monthly income of Rs. 4500/- where as the learned Tribunal awarded notional income of Rs. 2,000/- only. According to us, the rate adopted by the learned Tribunal towards monthly income of the appellant is too low. We adopt Rs. 3,000/- as the monthly income derived from the appellant from his occupation. But the appellant has been awarded loss of earning for six months at the rate of Rs. 2,000/-. per month According to us, injuries sustained by the appellant is such that he would not do any work for 9 months. If loss of earning is recalculated on the basis of the revised monthly income, the appellant will be eligible for further amount of Rs. 15,000/- towards loss of earnings.

The increase in the monthly income will naturally result in increase in disability compensation. Ext.A8 certificate is to the effect that the appellant has suffered permanent disability of 13%. Having seen the nature of the injuries, we are of the view that the appellant would have sustained permanent partial disability of at least 20%. We determine the disability compensation adopting monthly income of the appellant at Rs. 3,000/- and percentage of disability at 20%. This means that towards disability compensation, the appellant becomes eligible for an award of Rs. 43,600/-. We award the above amount to the appellant towards disability compensation. Thus in total, we award to the appellant Rs. 76000/- (5000+8000+4400+15000+43600)over and above what has been awarded by the learned Tribunal. This additional amount will carry interest at the same rate as is awarded by the learned Tribunal.

The appeal is allowed and the impugned award shall stand modified as above.