Alias v. Poulose A.V
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 14TH DAY OF JANUARY 2015/24TH POUSHA, 1936 MACA.No. 510 of 2014 () ------------------------ AGAINST THE AWARD IN OPMV 1170/2007 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 10-07-2013 APPELLANT/PETITIONER:
----------------------- ALIAS AGED 57 YEARS MATHEW, ALUKKAL HOUSE, PONNAMPARAMBU MECKADU KARA, NEDUMBASSERY VILLAGE ERNAKULAM DISTRICT.
BY ADVS.SRI.ELSON SIMON SRI.PRAMOD KOCHUTHOMMEN.E.
RESPONDENTS/RESPONDENTS :
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1. POULOSE A.V S/O. VARGHESE, APPOZHATHU HOUSE IN FROMT OF SUBSTATION, PUTHUPPANAM BHAGAM KINGINIMATTOM KARA, AIKARANADU SOUTH VILLAGE ERNAKULAM DISTRICT PIN-682311.
2. THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM-695001.
R BY SRI.SREEPRAKASH K.NAIR, SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AL/-
T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January 2015
JUDGMENT
Ramachandran Nair , J., The claimant before the Tribunal who was injured in a motor accident is the appellant herein. The accident occurred on 31.3.2007 while he was travelling as a passenger in a K.S.R.T.C. Bus bearing registration No. KL15/4863 (TP 685). When the driver applied the break suddenly, he fell down inside the bus and sustained serious injuries. He had sustained a rupture at its insertion of the right biceps tendon elbow.
2. The case of the appellant is that he is a farmer by occupation. The injury has caused losing his flexion strength by 60% and supination strength by 50%. The Doctor has fixed total permanent disability as 20%. But the Tribunal has reduced it as 7%. It is submitted by the learned counsel for the appellant that the certificate is seen to have been issued by the Doctor who treated the appellant. Therefore, the Tribunal should have accepted 20% disability. The objection that the Doctor was not having 10 years service cannot hold good.
3. The learned counsel for the K.S.R.T.C submitted that proper compensation has been awarded. It is submitted that the evidence with regard to the disability has been properly considered by the Tribunal and adequate amounts have been granted.
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4. Ext.A8 is the certificate issued by Dr. Robin Antony, Orthopaedic Surgeon of Karothukuzhi Hospital, Aluva who was examined as PW1. It is stated that injuries resulted in the patient losing the flexion strength by 60% and supination strength by 50%. The Doctor has fixed the permanent disability as 20%. It is submitted by the learned counsel for the appellant that there was no challenge regarding the percentage of disability while cross examining PW1. Hence PW1 being the Doctor who had treated the patient and as the injuries are not disputed along with the consequent disabilities, we find that the percentage of disability could have been accepted by the Tribunal. For permanent disability, the appellant claimed compensation. The appellant is a farmer by profession and also a trader in agricultural products. The Tribunal has not assessed the functional disability as such. We take the functional disability also as 20%. In that view of the matter, the compensation for disability would have to be recomputed. It will thus be Rs. 3500X12x9x20/100 = Rs. 75600/-.
4. Towards pain and suffering Rs. 8,000/- has been granted and inpatient treatment was only for a period of one day. Therefore, we do not find any reason to enhance the same. But for loss of amenities only Rs. 5,000/- has been granted. The effect of injuries on the body will affect his normal avocations and functions also. Therefore, we grant a further amount of Rs. 10,000/- towards loss of enjoyment of life and loss of amenities in life. Even though, learned counsel for the appellant submitted that for partial loss of earnings, one month's income alone has been granted, in the absence of any evidence that he was crippled or was unable to work out the normal
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avocations for a longer period, we will not be justified in granting more amount. Therefore, we recompute the compensation : Sl.
Heads Amt.awarded Amt.modified Basis No.
1 Loss of earnings 2 Partial loss of earnings NIL NIL 3 Transport to hospital 4 Extra nourishment 5 Damage to clothes 6 Medical expenses 7 Pain and suffering 8 Loss of amenities etc.
15000 9 Loss of earning power NIL.
NIL 10 Disability 26460 75600 Total Rs. 45,376 104466
5. We are of the view that the interest at the rate of 8% p.a requires modification and we fix the interest at the rate of 9% p.a from the date of petition by relying upon the decision of the apex court reported in Supe Dei (Smt.) & Ors. v. National Insurance Co. Ltd. And Anr. [(2009)4 SCC 513].
6. The Insurance Company is directed to deposit the entire compensation less the amount already deposited within a period of three months. The appeal is allowed as above. No cost.
Sd/- T.R.RAMACHANDRAN NAIR (JUDGE) Sd/- P.V.ASHA (JUDGE) AL/-
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True copy P.A to Judge