IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2486 of 2008()
1. THENATIONAL INSURANCE CO. LTD., PALA,
... Petitioner
Vs
1. JOSEPH @ PEPU, S/O. MATHAI,
... Respondent
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :24/02/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
M.A.C.A.Nos.2486 OF 2008
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 24th day of February 2010
JUDGMENT
Basheer, J.
This appeal is at the instance of the insurer of a vehicle which was involved
in a motor accident. The claim petition filed by respondent No.1, who suffered
serious injuries in the accident, was allowed by the Tribunal awarding him a total
compensation of Rs.3,05,750/- with 9% interest from the date of petition till the
date of realisation along with cost of Rs.6,100/-.
2. The primary grievance of the appellant/insurance company is that the
Tribunal committed serious illegality in reckoning the disability of the claimant as
100% eventhough Ext.A11 medical certificate indicated only 36% disability.
Learned counsel for the appellant also takes exception to the amount awarded for
loss of amenities contending that in view of the compensation granted under the
head of permanent partial disability, pain and suffering etc. the claimant ought
not to have been awarded any further amount under the head of loss of amenities.
3. It was noticed by the Tribunal that the claimant was infact physically
carried to the court by others. It was further noticed that the claimant required
the assistance of two persons and that his right leg “is almost in two pieces,
deformed and short”.
4. In this context, it is worthwhile to refer to the medical certificate issued
by the Assistant Professor in Orthopaedics, Government Medical College,
Kottayam which has been marked in the case as Ext.A11. The doctor had
M.A.C.A.Nos.2486 OF 2008
:: 2 ::
examined the claimant on March 5, 2008 about ten days prior to the disposal of
the claim petition. The claimant complained of:
1. Inability to walk and put weight on Right lower limb.
2. Shortening and deformity of Right leg.
3. Pain and abnormal mobility in Right leg.
The doctor noted thus:
“On examination he is unable to ambulate and was carried to the
clinic. His left leg is deformed with multiple scars and puckered
scars at the site of the pins. There is pain and abnormal mobility at
the lower third Right leg with swelling of the right foot and
shortening of right leg. His right knee has flexion deformity of 10
degrees and ankle is in 10 degrees of plantar flexion. The dorsalis
pedis and posterior tibial pulsation felt feebly over the right leg and
toe movements are very minimal only.
His right knee movement is from 10-90 degrees and right ankle is
stiff with only jog of movement possible.
High right leg is 1.5 inches shorter compared to the left leg.
His previous X rays show non-union of the lower third tibia with gross
osteoporosis.
He used to work as a rubber tapper but currently he is unemployed.”
The doctor further certified that claimants partial disability is 36%.
5. It is true that the Judge of the Tribunal who saw the claimant in flesh
and blood before him noticed that the claimant cannot do any work and that he
cannot even walk. It was in the above circumstances that the Tribunal took the
view that his disability has to be reckoned as 100% even though the doctor had
certified it only 36%. Claimant was admittedly a rubber tapper. At the time of
the accident he was 48. The accident occurred in December 2005. That means
for the last more than 4 years he has not been in a position to work. Going by the
M.A.C.A.Nos.2486 OF 2008
:: 3 ::
medical records available before us, we find no reason to differ from the view
taken by the Tribunal. Therefore, the contention raised by the appellant that the
Tribunal was not justified in reckoning the disability of the claimant as 100%
cannot be sustained.
6. Learned counsel for the appellant contends that the claimant ought not
to have been given any compensation under the head of loss of amenities. The
Tribunal has awarded only Rs.25,000/- under this head. However, it can be
noticed that while computing compensation under the head of disability the
Tribunal has deducted 1/3rd from his annual income. This could not have been
done.
7. In that view of the matter, we do not propose to interfere with the award
of compensation under the head of loss of amenities. We are not enhancing the
amount awarded under the head of disability, since the claimant has not
preferred any appeal challenging the 1/3rd deduction made from his income.
Keeping in view all the facts and circumstances, we are not satisfied that any
interference is warranted.
Appeal fails and it is accordingly dismissed.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
jes