IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 MACA.No. 14 of 2003() --------------------- OPMV.434/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANTS/PETITIONERS: --------------------------------------- 1. SIVANANDAN, S/O. VELAYUDHAN, SECURITY SUPERVISOR, CORDITE FACTORY, ARAVANCODU, NEELAGIRIS, TAMILNADU. 2. KAMALAKSHY, D/O. MEENAKSHY, VRINDAVANAM, VELIYAM WEST P.O., KOLLAM DISTRICT. BY ADV. SRI.V.R.REJITHKUMAR RESPONDENTS: RESPONDENTS: ------------------------- 1. P.K. SAITHU MOHAMMED, PADICKAMATTATHIL HOUSE, MYLOOR, PALLARIMANGALAM, KOTHAMANGALAM. 2. RADHAKRISHNAN NAIR, S/O. SREEDHARAN NAIR KALIYILAZHIKATHU VEEDU, VELIYAM P.O., KOTTARAKKARA. 3. NATIONAL INSURANCE CO.LTD., MEDICAL MISSION JUNCTION, KOLAMCHERY. BY ADV. SRI.P.RAJKUMAR FOR R1 SMT.NISHI KURUP SRI.MATHEWS JACOB (SR.) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. ------------------------------- M.A.C.A.NO.14 OF 2003 (B) ----------------------------------- Dated this the 18th day of February, 2008 J U D G M E N T KOSHY,J. Appellant claimant met with an accident by which he suffered very serious injuries. He claimed compensation of Rs.2 lakhs. Tribunal has awarded Rs.69,934/- after holding that accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent Insurance company. Only dispute is regarding the quantum of compensation. 2. With regard to the injuries, tribunal has described the details of the injuries with reference to the medical certificate at paragraph 12, which is as follows: “12. Ext.A6 is the copy of the wound certificate. Ext.A7 is the discharge summary. Ext.A8 is the scan report. Ext.A9 is the referral O.P.Card in which focal seizure (right) – Aphasia and worsening of neurological state due to right MACA.14/03 2 focal seizure are noted. Ext.A10 is another scan report. Ext.A11 is the disability certificate in which the following is noted. “The patient had injury right frontal area, lacerated wound right arm, multiple abrasion thigh, buttocks and swelling right hand. C.T.Head scan showed focal oedema in the left frontoparietal area with multiple infarcts.” “On examination the patient has right sided hemiparesis with motor aphasia. There is loss of muscle power and tone with minimal wasting of upper and lower limb muscles of the right side. The normal gait is distorted and has limbing with difficulty in walking. The patient cannot hold or lift weight with his right hand and the normal routine works not possible. The movements of wrist and elbow joints on the right side is painful and restricted – extension and flexion limited to 5 degree each. The patient has signs of retrograde amnesia – lose of memory and persistent post traumatic head-ache.” The permanent partial disability of the 1st petitioner due to the above functional disorders and mental sufferings is graded as 23%.” Tribunal accepted that there is 23% disability. Deceased was 56 years at the time of accident. Wife of the claimant deposed before the court that his retirement age is 60. The leave certificate produced would show that from the date of accident, 25.11.1995 till 20.10.1997 he was almost on full time leave except a very few days to avoid breach in service. Of course, if some leave was available, he would have encashed the leave MACA.14/03 3 or utilise the same for other purpose. Tribunal granted 201 days leave wages as Rs.14,895/-. In the absence of data regarding the earned leave actually he lost, we are not interfering with the same. But the tribunal only awarded Rs.5,000/- for pain and sufferings. This is a case where tribunal ought have awarded Rs.15,000/- for pain and sufferings. Therefore, he is entitled to Rs.10,000/- more on that count. Tribunal has calculated compensation for disability, loss of earning power and after effects of the accident taking into account that for four years, he will be earning and for balance four years he will not be earning and for the period he was earning, net salary taken into account was Rs.2,223/- and after retirement Rs.1,250/- was taken into account for balance four years. We are of the opinion that calculation made by the tribunal cannot be accepted at all. He has 23% disability as he was unable to continue in employment and this disability has to be carried on till his life. His chance of getting another employment after retirement is also lost. He was 56 years old and 8 is the apt multiplier taking the 2nd Schedule as the guideline. He was getting a monthly salary of Rs.4,648/- as can MACA.14/03 4 be seen from the salary certificate produced. Tribunal has taken only Rs.2,223/- as net salary taking into account deductions towards provident fund, loan amount etc. These are not the matters to be considered. However, we are of the opinion that atleast Rs.4,000/- ought have been taken as the monthly income, and if Rs.4,000/- is taken, for 23% disability, taking 8 as the multiplier, compensation payable will be Rs.4,000 x 12 x 8 x 23/100 = Rs.88,320/-. Tribunal has awarded Rs.38,342/- for disability, loss of earning, loss of amenities and after effects of the accident. Therefore, he is entitled to additional compensation of Rs.49,978/- rounded to Rs.50,000/-. It is submitted that for loss of amenities, separate amount has to be awarded and amount granted for medical expenses are inadequate. However, considering the total amount granted, we are not enhancing the same and the additional amount of Rs.60,000/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. Considering the age of the appellant, on deposit of the above amount, appellant is allowed to withdraw MACA.14/03 5 the same. Appeal is partly allowed. J.B.KOSHY, JUDGE K.T.SANKARAN, JUDGE prp J.B.KOSHY & K.T.SANKARAN, JJ. -------------------------------------------------------- M.A.C.A.NO.14 OF 2003 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 18th February, 2008