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SONY JOSEPH, S/O.JOSEPH versus T.HARIPRIYAN,PANAVELIL HOUSE

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SONY JOSEPH, S/O.JOSEPH v. T.HARIPRIYAN,PANAVELIL HOUSE - MFA No. 523 of 2002 [2007] RD-KL 14089 (25 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 523 of 2002()

1. SONY JOSEPH, S/O.JOSEPH,
... Petitioner

Vs

1. T.HARIPRIYAN,PANAVELIL HOUSE,
... Respondent

2. NAVAL KUMAR SHARMA,S/O.MADANMOHAN SHARMA

3. THE MANAGER, UNITED INDIA INSURANCE

For Petitioner :SRI.P.VIJAYA BHANU

For Respondent :SRI.SIBY MATHEW

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice K.P.BALACHANDRAN

Dated :25/07/2007

O R D E R

J.B. KOSHY and K.P.BALACHANDRAN, JJ.

M.F.A. No. 523 of 2002

Dated this the 25th day of July, 2007

Judgment

Koshy, J.

Appellant/claimant met with an accident on 27.7.1995 as a result of which he sustained disability. Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent insurance company. However, against a claim for compensation of Rupees Two lakhs, tribunal has awarded only Rs.21,500/-. Only quantum of compensation is disputed in this appeal.

2. PW2 doctor certified that there is 12% disability. The certificate is as follows:

"This is to certify that Mr.Sony Joseph, 45 years, Vazhavelil, M.O. Ward, Alleppey was examined by me today for assessment of permanent disability after alleged road traffic accident. Ref. Discharge card MCH, Alleppey, IP No.21678, date of admission 21.7.1995. The injury as per the reference is grade I compound fracture of both bones Leg (R). M.F.A.No.523/2002 2 As examined today clinically and radiologically following problems are noted.

1. Moderate restriction of movements of (R) ankle producing difficulty in squatting.

2. Evidence of chronic osteomyclitis of tibia with bony thickening.

3. Terminkal limitation of knee flexion (R).

4. Scarring and cosmetic disfigurement of (R) leg. For the above, his permanent disability is assessed as TWELVE PERCENT (12%)." But, during examination, it was revealed that he had an earlier fracture and consequent osteomylitis and the tribunal came to the conclusion that the entire difficulty mentioned in the certificate was not due to this accident and the above view is supported on the deposition of PW2 himself in cross-examination. Therefore, we are of the opinion that compensation cannot be granted for 12% disability.

3. PW3 was examined as employer of the claimant. He issued Ext.A7 certificate to show that claimant was employed on a monthly salary of Rs.5,000/- M.F.A.No.523/2002 3 and be was on leave for four months because of the accident. The tribunal has awarded only Rs.4,500/- for the period of leave. He was aged 41 and maintaining a family. Even though Ext.A7 certificate issued by PW3 cannot be believed in the absence of any accounts etc., we assess Rs.2,500/- as his monthly income. If that be so, for four months treatment, Rs.10,000/= ought to have been granted. Therefore, he will be entitled to another Rs.5,500/- in this head. Rs.7,500/= was already granted for disability. Since major disability is due to the earlier fracture and it was not proved that the present disabilities are due to this accident, we are not inclined to enhance any amount on this head. The above additional amount of Rs.5,500/= granted for loss of earning should be deposited by the third respondent insurance company with 8% interest from the date of application till the date of deposit. On deposit of the above amount, claimant is entitled to withdraw the same. J.B.KOSHY

JUDGE

K.P.BALACHANDRAN

JUDGE

vaa M.F.A.No.523/2002 4 J.B. KOSHY AND

K.P.BALACHANDRAN, JJ.

M.F.A.NO.523/2002

JUDGMENT

Dated:25th July, 2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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