DIMSON Vs. A.SHANMUGHAN

JUDGEMENT

(1.) The claim petitions from which the captioned appeals arose were jointly enquired into and disposed of by a common award dated 22.3.2007 by the Motor Accidents Claims Tribunal, Irinjalakuda. The former appeal arises from the judgment and award in O.P.(M.V) No.1569 of 2001 and the latter appeal arises from the judgment and award in O.P.(M.V)No.1804 of 2001. In the said circumstances, we heard the appeals jointly and they are being disposed of by this common judgment. The facts in brief necessary for the disposal of these appeals are as hereunder:-

(2.) We have heard the learned counsel for the appellants in both the appeals, Sri.P.K.Manojkumar, the learned counsel appearing for the 2nd respondent in M.A.C.A.No.1016 of 2008 and Sri.P.Jacob Mathew, the learned counsel appearing for the 2nd respondent in M.A.C.A.No.1655 of 2008. It is submitted by the learned counsel on both sides that in both the appeals the only question to be decided is whether or not the appellant is entitled to get enhanced compensation ? M.A.C.A.No.1016 of 2008

(3.) The appellant was the rider of the motor cycle involved in the accident. On the date of the accident he was aged 27 years. In the claim petition his occupation was given as fish merchant and further it was stated that he was earning 5,000/- per month. Ext.A17 is the wound certificate. It would reveal that he sustained a crush injury having a size of 10 x 1 c.m. exposing bone, compound fracture of left femur, compound fracture of left both bones and compound fracture of meta- tarcel left bone. Ext.A22 is the disability certificate in respect of the appellant. As per the same, the doctor opined that he got a temporary disability of 55% for the first three months and 35% permanent disability for the next six months. The permanent disability was assessed as 23%. PW2 is the doctor who issued Ext.A22. It would show that there is a united fracture of left tibia and non-union of fibula at the upper end and also malunion of the fibula at lower end. Stiffness in left ankle was also found besides lack of dorsiflexion movements of left ankle. It was also noted therein that he had equinus contracture of 20o in left ankle. It was also noted therein that there is an ugly scar over medial aspect of left thigh and subcutaneous and muscle loss in upper end of left thigh. In fact, taking into account all those factors that the disability was assessed as stated above. We have carefully gone through Ext.A22. The factors which were taken into account by PW2 for assessing the permanent disability were not virtually fully accepted by the Tribunal. As against a certification of 23% of permanent disability the Tribunal assessed the permanent disability only as 13%. Having gone through the evidence on record including the disability certificate wherein various factors that were taken into account for assessing the permanent disability were mentioned, we are of the considered view that a slightly higher percentage of permanent disability can be taken and we assess the same as 15%. The learned counsel for the appellant contended that the Tribunal also erred in fixing the monthly income. It is the submission that disregarding the averments in the claim petition regarding the occupation and income the Tribunal fixed the monthly income notionally at 2,000/-. The contention is that it also requires an upward modification.