IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 663 of 2004()
1. C.P.RAJEEVAN, S/O. NARAYANAN,
... Petitioner
Vs
1. RAJEEVAN E.M. S/O. KUNHIRAMAN,
... Respondent
2. M.PRADEEPAN S/O. ACHUTHAN,
3. THE BRANCH MANAGER, UNITED INDIA
For Petitioner :SRI.V.RAMKUMAR NAMBIAR
For Respondent :SMT.K.K.CHANDRALEKHA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/07/2008
O R D E R
M.N.KRISHNAN, J
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MACA No.663 OF 2004
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Dated this the 7th day of July 2008
JUDGMENT
This appeal is preferred against the award of the Motor Accidents
Claims Tribunal, Thalassery in O.P.(MV)No.347 of 1998. The claimant a
toddy tapper by profession sustained fracture of his leg and the Tribunal
awarded him a compensation of Rs.72,900/- which takes in about
Rs.30,000/- as medical expenses. Dissatisfied with the award, the claimant
has come up in appeal.
2. Heard the counsel for the appellant as well as the counsel for the
insurance company. Perused the records made available. It can be seen that
the claimant sustained fracture of the leg as a result of which he was initially
treated in the Unity Health Complex, Mangalore for 22 days. Thereafter
internal fixation was removed for which purpose he remained in the hospital
for 3 days. The 3rd discharge card would reveal that bone grafting was done
on 8.9.1997 and he was discharged on 21.9.1997. The Tribunal fixed his
income at Rs.1500/- and negatived the disability certificate issued on the
MACA 663/2004 -:2:-
ground that it is not issued by the Doctor, who has treated him and
thereafter proceeded to work out the compensation. So far as the
profession of a toddy tapper is concerned, it is not correct to fix his income
at Rs.1,500/- for the reason that his income is much more than that. It can
be seen that he had produced a document to show that his income is about
Rs.7,000/-. It is a certificate issued by the General Secretary of the trade
union range. I think without any hesitation, the court can fix the income at
Rs.2,500/-. The main complaint of the Tribunal was that the disability
certificate had been issued by the Doctor, who has not treated him. The
learned counsel had produced before me the discharge summary card which
indicates the name of Umanandamalliya. There is also signature either by
Umanandamalliya or on behalf of him by the hospital authorities. This is a
case where a patient had to undergo treatment for 38 days as an inpatient on
account of the injury sustained and on account of the malunion fracture
bone grafting has to be done. The copy of the disability certificate would
show that there has been shortening of the leg by 2 cms and for the purpose
of grafting, bone from the iliac crest has been removed. The disability
certificate explains the total treatment that he has undergone which is
clearly evident from the discharge card itself and therefore it is not correct
to reject the disability certificate in toto to disallow compensation to the
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claimant. It has to be further remembered that a toddy tapper by profession
who requires a very healthy leg had been badly fractured which resulted in
shortening of the leg coupled with the limitation of movements and
therefore some disability has to be taken up, taking into consideration the
factum of his job as a climber. I feel at least 8% disability can be taken as
the lowest and on that basis the compensation can be calculated. When it is
taken as 8% and the monthly income at Rs.2,500/- the annual loss of
earning capacity will come to Rs.2,400/- which when multiplied by 18
would be Rs.43,200/-. Out of this amount, Rs.8,000/- has been awarded
towards loss of amenities and enjoyment in life which can be deducted
since percentage disability compensation is being awarded. Therefore the
claimant will be entitled to an additional compensation for disability at
Rs.35,200/-. Since it is seen that he had not been able to do any work for a
period of six months then the difference in compensation at the rate of
Rs.2,500/- would come to Rs.6,000/- makes the additional compensation of
Rs.41.200/-.
Therefore the MACA is partly allowed and the claimant is entitled to
an additional compensation of Rs.41,200/- with 7% interest on the said sum
from the date of petition till realisation and the insurance company is
directed to deposit the amount within 60 days from the date of receipt of a
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copy of this judgment.
M.N.KRISHNAN, JUDGE
Cdp/-