Ajayan v. Brijith Edward

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 6TH DAY OF MARCH 2015/15TH PHALGUNA, 1936 MACA.No. 2396 of 2012 () ------------------------- AGAINST THE AWARD IN OPMV 1367/2007 of ADDL.MACT,KOLLAM DATED 05-07APPELLANT(S):PETITIONER ------------------------ AJAYAN S/O.CHELLAPPAN, KALLUPURAKKAL, CHEREEYAZHIKKAL ALAPPAD, KARUNAGAPPALLY, KOLLAM.

BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S):

----------------------------

1. BRIJITH EDWARD 375, VETTUTHARA PUTHUVAL, NEENDAKARA KARUNAGAPPALLY, KOLLAM.

2. ARUN EDWARD S/O.EDWARD, VETTUTHARA, PUTHUVAL NEENDAKARA, KOLLAM. (DELETED)

3. THE MANAGER NATIONAL INSURANCE CO.LTD PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM. (NAME OF R2 DELETED FROM THE PARTY ARRAY AS PER ORDER IN IA 418/2015 DT.6.2.2015) R3 BY ADV. SRI.AGI JOSEPH R1 BY ADV. SRI.SAJU J PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

T.R. RAMACHANDRAN NAIR & P.V. ASHA, JJ.

- - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2396 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of March, 2015

JUDGMENT

Ramachandran Nair, J.

The injured is the appellant herein. He is a fisherman. He met with an accident on 16.10.2006 at about 7.40 a.m. He was returning to his residence from his work place. An autorickshaw bearing Reg. No.KL 23-2573 knocked him down and he fell down on the road sustaining injuries. He was taken to the Medical College Hospital, Thiruvananthapuram and was treated as inpatient till 7.12.2006. The appellant sustained the following injuries: "1. Type III B compound fracture on the frontal area;

2. Type III fracture external fixation later SSG both Malleolar fracture on the left angle of left leg, later reviewed; and

3. Below kneel cast (plaster) fixed."

2. Learned counsel for the appellant submitted that the Tribunal has granted only a meagre amount as compensation, viz. a sum of

Rs.56,000/-. The amounts have been awarded in the following manner:

Head of claim amount awarded by the Tribunal (Rs) Permanent partial disability 12000 Medical expenses 15000 Loss of earnings Pain and suffering 10000 Transport to hospital Extra nourishment & bystander expenses Total 56000 It is not clear from the award as to the fixation of monthly income for calculating the disability compensation. The Medical Board has issued Ext.A8 certificate, wherein the disability assessed is 20%. On the ground that the appellant has not examined any of the doctors who were members of the Medical Board, the Tribunal reassessed the percentage of disability at 5% which we cannot agree. When a competent body, viz. the Medical Board has examined the appellant and there is no dispute regarding the injury sustained or the disability suffered, the certificate should have been accepted.

3. Learned counsel for the appellant submitted that because of the disability to the ankle, the appellant is unable to walk freely and there are lot of difficulties in pursuing his personal matters also. It is submitted that he cannot do work as a fisherman as before. The appellant being a fisherman, we will be justified in fixing the monthly income at the rate of Rs.5,000/-, since the accident occurred in the year 2006. We, therefore, award an amount of Rs.20,000/- for loss of earnings (Rs.5000/- x 4 months). Towards bystander's expenses, taking Rs.250/- per day, for 53 days the amount will be Rs.13,250/-, instead of Rs.5,000/- granted by the Tribunal for extra nourishment and bystander's expenses. We grant a further amount of Rs.5,000/- towards extra nourishment.

The appellant would have suffered much pain during the period of treatment and various treatment procedures including plaster was applied. It is clear from the details furnished by the appellant that he had to undergo surgeries also. Therefore we grant an amount of Rs.50,000/- towards compensation for pain and suffering. The Tribunal has granted only a sum of Rs.

expenses which we confirm. We also confirm the amount awarded towards transport to hospital at Rs.5,000/-. As far as claim towards loss of amenities and enjoyment in life, nothing has been granted by the Tribunal and we grant an amount of Rs.35,000/- under this head. Towards permanent disability the total amount will be Rs.1,56,000/-. Thus, the award passed by the Tribunal is modified as follows: Head of claim amount awarded by the Tribunal (Rs) Modified award passed by this Court Permanent partial disability 12000 156000 Medical expenses 15000 15000 Loss of earnings 20000 Pain and suffering 10000 50000 Transport to hospital Bystander expenses 13250 Extra nourishment Loss of amenities and enjoyment in life 35000 Total 299250 (Rupees Two Lakhs Ninetynine thousand Two hundred and Fifty only) The enhanced amount will carry interest at the rate of 9% per annum from the date of petition and the insurance company is directed to

deposit the entire amount of compensation, less the amount already deposited before the Tribunal, within a period of three months. The appeal is allowed as above. The parties will suffer their costs in the appeal.

(T.R. RAMACHANDRAN NAIR, JUDGE.) (P.V. ASHA, JUDGE.) kav/