IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 MFA.No.347 of 2003 (B) ---------------------------- OP(MV).670/2000 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATTINKARA. .................... APPELLANT/APPLICANT: ----------------------------- SREEDHARAN N., KIZHAKEVILA PUTHEN VEEDU, MUTTACAUD P.O., VENGANOOR, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.V.S.SUNIL KUMAR RESPONDENTS/RESPONDENTS: ------------------------------------ 1. V.NAGARAJANPOTTI, KAMALA BHAVAN, VENGANOOR P.O., THIRUVANANTHAPURAM. 2. THE ORIENTAL INSURANCE CO.LTD., RAMAKRISHNAN BUILDINGS, ARISTO JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. F. A No.347 of 2003 ------------------------------------------------ Dated this the 22nd day of September, 2008 JUDGMENT Koshy, J The appellant at the age of 53 sustained serious injuries in a motor accident on 22/07/98. He filed a claim petition claiming Rs.5 lakhs as compensation. Tribunal awarded only an amount of Rs.1,24,500/- with interest including reimbursement of medical expenses after holding that the first respondent driver-cum-owner of the vehicle was responsible for the accident. The offending vehicle was insured by the second respondent/ Insurance Company. Only dispute is regarding the quantum of compensation. 2. With regard to the injuries, the Tribunal has referred the injuries in para 8 of the award as follows:- M. F. A No.347 of 2003 -2- “As per the medical records, it is proved that in the accident, the petitioner sustained head injury, fracture (R) clavicle, IIIrd nerve palsy (R) side, multiple fractures of bony walls of both maxillary areas, homosines and soft tissue swelling (L) orbital region, contusion of brain parenchyma (R), recurrant attack of giddiness, infarction (R) superior mid parietal cortical region and (R) mid superior parietal parasagittal region, contricular system shows dilatation with cortial atrophy, contusion (R) parietal and occipital region, dearness (R) ear and mal united fracture (R) clavicle. As per Exts.A8 & A9 C.T. Scan reports, it is noted that the petitioner sustained fracture of bony walls of both maxillary areas, fracture (L) zygomatic arch, fracture (R) squamous temporal bone, fracture (L) frontal bone and fracture both parietal bones, There is soft tissue swelling and scalp haematoma over the (R) tempero parietal region and (L) parieto occipital region and swelling over (L) orbital region. The petitioner was admitted in the Medical College hospital, Thiruvananthapuram on 22/07/98 treated and discharged on 24/09/98. Thereafter he was admitted and treated in the Southern Railway Hospital from 29/01/99 to 11/02/99 and thereafter from 17/03/99 to 25/03/99. Subsequently, he was treated in the Government Ayurveda College Hospital, Thiruvananthapuram as inpatient from 09/03/2000 to 16/05/2000. On 07/08/98, the petitioner was developed weakness of (L) side. E.N.T consultation done to him. The petitioner was treated with figure '8' bandage and audiogram done to him.” M. F. A No.347 of 2003 -3- 3. The Tribunal found that he is disabled by 25%. It is the case of the petitioner who was an employee in Indian Railways that his services were terminated with effect from 13/04/1999 as he is medically unfit. His contention is that as he was unable to work, he is entitled to compensation for 100% loss of earning capacity. In view of the contentions so raised, we have referred him for medical examination by a Medical Board constituted by the Government Medical College Hospital, Thiruvananthapuram. The Medical Board certified that there is 40% disability. Medical Board certified that the appellant has the following defects:- “1. Induced bleed into air sinuses, right third (N) palsy, mild deafness and severe mental depression. 2. Depressive disorder (severe).” 4. He was examined by a panel of five expert Doctors. Even though it is contended M. F. A No.347 of 2003 -4- that he has 100% disability considering the nature of injuries, we are of the opinion that at least compensation ought to have been granted for 40% disability. 5. Now the question is regarding the amount he was earning at the time of the accident. He produced Annexure-A Certificate. The above is pay slip/pay ticket. It shows that the total wages for 20/11/97 is Rs.4,580/-. Out of which Rs.289/- was paid for house accommodation. In the Pay Slip it is not stated that the above wages is for a month. But the above pay ticket as well as Annexure- A12 shows that he was employed in Southern Railway. Taking all these aspects, we are of the opinion that at least Rs.3,000/- can be taken as the monthly income. The accident occurred at the age of 53 and the multiplier applicable is 11 taking guidelines from the M. F. A No.347 of 2003 -5- Second Schedule. If that be so, compensation payable will be Rs.1,58,400/- (Rs.3,000/- x 12 x 40/100 x 11). The Tribunal has awarded only an amount of Rs.66,000/- taking 11 as the multiplier and Rs.2,000/- as the monthly income. Therefore, additional compensation payable for disability and loss of earning capacity will be Rs.92,400/-. The Tribunal found that he was unable to do any work for five months. Considering the nature of injuries, Rs.10,000/- was awarded as compensation. Since we have increased the monthly income to Rs.3,000/- he is entitled to Rs.5,000/- more for the actual loss of earnings during the treatment period. It is his case that after the accident, he was continuously on leave and finally his services were terminated as can be seen from Annexure-A (a). It is contended that the Tribunal awarded M. F. A No.347 of 2003 -6- only Rs.3,000/- as medical expenses since no medical bills were produced by the appellant. Perhaps it may be the reason that he being a Railway employee, he might have been treated only in the Railway Hospital and his bills were already reimbursed. It has been stated that he was treated about 160 days in Medical College Hospital, Thiruvananthapuram and Ayurveda College Hospital, Thiruvananthapuram apart from the treatment at Southern Railway Hospital, Chennai. There will be many incidental expenses incurred by him during the long inpatient treatment. For bystanders expenses only Rs.5,000/- was awarded by the Tribunal. So, for medical and incidental expenses we award Rs.2,000/- more. Thus, the appellant is entitled to Rs.99,400/- more than what is awarded by the Tribunal. The above amount of Rs.99,400/- should be deposited by M. F. A No.347 of 2003 -7- the Second Respondent/Insurance Company with 7.5% interest from the date of application till its deposit, over and above the amount decreed by the Tribunal. On deposit of the same the appellant is allowed to withdraw the same. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-