IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 929 of 2008()
1. ANTONY, AGED 49 YEARS, S/O.VAKKACHAN,
... Petitioner
Vs
1. MATHEW TONY K.A., KOOTTUNGAL HOUSE,
... Respondent
2. K.E.PIOUS, KURISINGAL HOUSE,
3. THE UNITED INDIA INSURANCE CO.LTD.,
4. E.J.MATHEW ROY, S/O.YESHUDAS,
5. THE ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.P.M.JOSHI
For Respondent :DR.ELIZABETH VARKEY
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :22/01/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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C.M.Application No.926 of 2008
&
M.A.C.A.No.929 OF 2008
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DATED THIS THE 21st DAY OF JANUARY, 2010
O R D E R/J U D G M E N T
Basant, J.
This petition is to condone the delay of 119 days in filing an
M.A.C.Appeal. Heard. We take a lenient view. Petition allowed.
Delay condoned.
M.A.C.A.NO.929/08
2. Injured/claimant is the appellant. He had suffered
injuries in a motor accident which took place on 27.9.2000. Upper
end of right tibia suffered an injury. It was a displaced fracture.
He was a mason by profession. He very reasonably claimed that
his monthly income was Rs.1,500/-. He was aged 42 years at the
relevant time. He was an inpatient for a period of five days.
Plaster of paris long leg cast was applied. It was removed only on
30.11.2000. According to the appellant, there was limitation of
flexion of the right knee consequent to the injury. He had to
undergo physiotherapy for some period of time, even after active
treatment. He claimed a total amount of Rs.1.25 lakhs as
compensation. The Tribunal on an anxious consideration of all the
M.A.C.A.NO.929/08 -2-
relevant inputs proceeded to pass the impugned award directing
payment of a total amount of Rs.22,273/- as per the details shown
below, which are available in paragraph 9 of the award.
Heads Amounts awarded
Medical expenses : Rs. 5,273.00
Transportation & damage to clothes : Rs. 500.00
Attendant expenses &
extra nourishment : Rs. 1,500.00
Shock, pain & sufferings : Rs. 10,000.00
Loss of earning for two months : Rs. 3,000.00
Loss of amenities & conveniences : Rs. 2,000.00
-----------------------------
Total : Rs. 22,273.00
=============
The compensation amount was directed to be paid along with
interest at the rate of 7.5% p.a.
3. We have heard both counsel. The learned counsel for
the appellant submits that the appellant is aggrieved by the
impugned award. What is the grievance? First of all it is
contended that the compensation awarded under the head of pain
and suffering is too low and inadequate. Only an amount of
Rs.10,000/- has been awarded. Taking into account the period of
hospitalisation, the fact that long leg POP cast was applied and
was removed only after the elapse of a period exceeding two
M.A.C.A.NO.929/08 -3-
months from the date of the accident and considering the fact
that there was limitation in flexion of the knee and consequent
obligation to undergo physiotherapy, reasonable and higher
amount must have been awarded as compensation, it is
contended. Taking the totality of circumstances into account, we
find merit in this contention.
4. The learned counsel then contends that the appellant
was a mason. The accident had taken place on 27.9.2000. The
long POP cast was removed only on 30.11.2000. But the Tribunal
had reckoned loss of earnings only for a period of two months.
The nature of employment of the appellant – as a mason obliging
him to physically exert himself standing, was not taken into
reckoning by the Tribunal at all. The Tribunal was unrealistic in
assuming that involuntary unemployment could have been only
for a period of two months. We are persuaded to agree in the
facts and circumstances of this case, considering the nature of the
injury and treatment as also the nature of employment of the
appellant, that there must have been involuntary unemployment
for a period of four months.
5. The learned counsel for the appellant finally contends
that during the period of treatment until the physiotherapy was
M.A.C.A.NO.929/08 -4-
over, the appellant had been put to inconveniences and loss of
amenities. Quality of life which he was able to enjoy was
impaired considerably even after completion of the immediate
period of treatment. For this, only an amount of Rs.2,000/-has
been awarded. Further amounts are liable to be awarded under
this head, even assuming that the appellant has not succeeded in
proving permanent disability as a result of the accident and
injury, it is contended. The learned counsel points out that the
Doctor had certified that limitation in flexion of the knee had
resulted and had advised to undergo physiotherapy. We find
force in this contention. We are satisfied that a higher amount
must have been awarded under the head of loss of amenities.
6. On the basis of the above discussions, we come to the
conclusion that the appellant is entitled to the following further
amounts in addition to the amount awarded by the Tribunal.
1. Shock, pain and
suffering - Rs.12,500/- minus
Rs.10,000/- = Rs.2,500/-
2. Loss of earnings
Rs.1,500x4 =Rs.6,000/- minus
Rs.3,000/- = Rs.3,000/-
3. Loss of amenities
and conveniences Rs.5,000/- minus
RS.2,000/- = Rs.3,000/-
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Total = Rs.8,500/-
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M.A.C.A.NO.929/08 -5-
7. In the result:
(a) this appeal is allowed in part.
(b) The appellant is found entitled to a
further amount of Rs.8,500/- (Rupees
Eight Thousand and Five Hundred only)
in addition to the amount already
awarded by the Tribunal.
(c) Needless to say the entire amount of
compensation shall bear interest from the
date of the petition to the date of payment
at the rate of 7.5% p.a. as directed by the
Tribunal.
(d) All other directions of the Tribunal are
upheld.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn