K.D. Jose vs P. Pavithran, M/s Prima Enterprieses, Perinjanam (VIA), Kodungallur, K.P. Unnikrishnan and The Oriental Insurance Co. Ltd.

Joseph Francis, J.—The appellant herein was the petitioner in O.P.(MV) No. 2980 of 2001 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The allegations raised before the Tribunal are as follows : On 5.5.2001 at about 3.30 p.m., while the petitioner was riding a Scooter through Edappally-Cheranalloor road and when he reached near Thaikkavu near Cheranalloor, an Autorikshaw bearing registration No. KL-8/P 8211 driven by the 2nd respondent came in a rash and negligent manner and hit on the scooter. Due to the accident, the petitioner sustained serious injuries. The accident was due to the rash and negligent driving of the second respondent. The first respondent was the owner and the third respondent was the insurer of the Autorikshaw. The petitioner claimed Rs. 3,00,000/- as compensation. The third respondent filed written statement admitting the policy of the Autorikshaw and contended that the accident was not due to the negligence of the second respondent and that the compensation claimed is excessive. Before the Claims Tribunal, the petitioner filed proof affidavit and Exts. A1 to A9 were marked on the side of the petitioner. Ext. B1 was marked on the side of the third respondent. The Tribunal, on considering the evidence on record, found that the accident was due to the rash and negligent driving of the second respondent and awarded a compensation of Rs. 54,500/-to the petitioner together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, from the respondents and the third respondent was directed to deposit the amount as the insurer. Being dissatisfied with the quantum of compensation awarded, the petitioner filed this appeal.

Heard the Learned Counsel for the appellant and the Learned Counsel for the Insurance Company.

The Learned Counsel for the appellant submitted that the compensation awarded is very low and that the appellant is entitled to get enhanced compensation under various heads. The Learned Counsel appearing for the Insurance Company supported the award.

The Tribunal awarded compensation under various heads as follows:

Ext. A2 is the copy of wound certificate issued from Ernakulam Medical Centre, showing that due to the accident, the petitioner sustained the following injuries :

Contusion side of chest.

Fractures of 2/3/4/5 ribs side.

10 x 8 x 5 cms. Laceration on maxilla with avulsion of acromio clavicular joint.

Open fracture both bones forearm.

Fracture of distal radius.

Petitioner had to remain in the hospital as in-patient till 24.5.2001. Condition at the time of discharge was noted as satisfactory. During the period of hospitalization, wound debridement and external fixation were done. Secondary closure of shoulder wound, skin grafting of forearm and k-wiring of ulna were done. He was also found to have a foreign body in (L) hand. Foreign body removal, external fixator removal and pin and POP cast application were done. POP cast was removed on 26.6.2001 and POP slab was applied. Petitioner was again admitted on 9.7.2001 for open reduction and internal fixation of both bones of forearm was done and was discharged on 16.7.2001. Dressings were changed and supportive treatment was given. X-ray taken on 27.10.2001 showed that fractures had united well. The above details are discernible from Ext. A5 copy of discharge card and Ext. A6 treatment certificate. No medical bills were produced.

During the pendency of the petition, petitioner was subjected to examination by the Medical Board attached to General Hospital, Ernakulam. As per Ext. A7 disability certificate, petitioner''s partial permanent orthopedic disability with respect to whole body was assessed as 19% as per Mcbride''s scale. The petitioner had produced Ext. A8 certificate issued by the employer stating that he was working as Manager in their concern since 1998 October and after the accident he had to discontinue his job as found unfit. It is also certified in Ext. A8 that the petitioner was being paid a monthly salary of Rs. 2,800/-. Ext. A8 further shows that due to the accident, the petitioner was absent from duty from 6.5.2001 to 5.3.2002. Since the petitioner had produced the certificate issued by the employer showing the monthly salary as Rs. 2,800/-, that can be taken as his monthly income, instead of Rs. 2,500/- assessed by the Tribunal. Due to the accident, the petitioner could not do any work for about 9 months. Therefore, the petitioner is entitled to get Rs. 25,200/- as compensation for loss of earnings for nine months, instead or Rs. 10,000/- awarded by the Tribunal. The Tribunal has awarded a consolidated amount of Rs. 4,500/- towards transportation, hospitalization, attendant expenses, extra-nourishment and damage to the clothings. Considering the nature of the injuries sustained, the hospitalization and the treatment given to the petitioner, we are of the view that Rs. 2,000/- towards transportation to the hospital, Rs. 3,000/- towards extra-nourishment, Rs. 8,000/- towards attendant expenses and Rs. 1,000/- towards damage to clothings can be awarded to the petitioner. Thus, the petitioner is entitled to get Rs. 14,000/- instead of the consolidated amount of Rs. 4,500/- awarded by the Tribunal under those heads. The petitioner was aged 49 years at the time of accident. Therefore, ''13'' can be taken as suitable multiplier. The permanent disability can be assessed as 19%. Calculating on that basis, the petitioner is entitled to get Rs. 82,992/- as compensation for permanent disability. Thus, in total, the appellant/petitioner is entitled to get Rs. 1,07,692/- as additional compensation.

Accordingly, this appeal is allowed in part and the appellant/petitioner is allowed to realize an additional compensation of Rs. 1,07,692/- together with interest at the rate of 8% per annum from the date of the petition till the date of deposit, from the respondents and the third respondent is directed to deposit the amount within three months from this date. There is no order as to costs.