IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 MFA.No. 268 of 2001() --------------------- OPMV.936/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT: PETITIONER: ----------- SASIDHARAN NAIR, S/O. VELAYUDHAN NAIR, MUTHALAKUNNEL HOUSE, MUTHOLAPURAM KARA, ELANJI VILLAGE. BY ADV. SRI.MKS.MENON RESPONDENTS: RESPONDENTS:- ------------- 1. MURALEEDHARAN, PUSHPPAKATHU HOUSE, KOTHAKULANGARA, ANGAMALY. 2. VENU GOPALAN, S/O. GOPALAN, THEKKUVATTAKASSERY, KOOTHATTUKULAM. 3. THE BRANCH MANAGER, THE UNITED INDIA INSURANCE COMPANY LTD., MUVATTUPUZHA. BY ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 9-1-2008 , THE COURT ON 09/01/2008 DELIVERED THE FOLLOWING: J.B. Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. No. 268 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of January,2008 JUDGMENT Koshy, J. Appellant/claimant has suffered serious head injury in a motor accident occurred on 10-8-1997. He was aged 48. He was an Engineer and was doing contract work. He was also Standing Committee Chairman of the Panchayat. According to the appellant, he sustained severe brain injury, he needs help of others to do daily routine work and the complete recovery is unlikely. He claimed a compensation of Rs.10 lakhs. The tribunal awarded only Rs.99,100/- as compensation. Only quantum of compensation is disputed in the appeal. The tribunal found that the accident occurred due to the negligent driving of the 2nd respondent and directed the 3rd respondent Insurance Company to deposit the amount. 2. Ext.A11 is the wound certificate issued from Devamatha Hospital, Koothattukulam. As per Ext.A11 wound certificate the petitioner had sustained the following injuries:- MFA 268/01 2 i. multiple abrasions over forehead, wrist and right hand; ii.lacerated injury 2 cm x 1 c.m. over scalp. Subsequent treatment was in the Medical College Hospital, Kottayam. Ext.A14 is the discharge certificate. He was taken to the Medical College Hospital, Kottayam on the same day and was treated as an inpatient there till 21-8-1999 for a period of 11 days. C.T. scan was taken, which shows cerebral odeama and evidence of small subdural haemarhage. Ext.A18 is a certificate issued on 9-6-2000 from Indo- American Hospital, Brain and Spine Centre. The certificate issued by the Medical Superintendent of Brain and Spine Centre on 13-8-1998 certifies that petitioner was undergoing treatment in the hospital since 23-9-1997. He was referred to the hospital as a case of post-head injury sequelae (chronic headache, behavioral changes and memory dysfunction) and post traumatic epilepsy. The doctor further certifies that th person needs help of another person for his daily routine work. He has not shown any significant improvement, during this period, a complete recovery of these sequelae is unlikely. It is also certified that the person requires help for his official duties. MFA 268/01 3 3. After considering the certificates issued by Indo American Hospital, Brain and Spine Centre on treatment particular the tribunal found that he was having traumatic epilepsy. The tribunal found as follows:- “..He is having post traumatic epilepsy. He requires help of others to attend the daily routine work. Since he has not shown any significant improvement the doctor also certified that complete recovery of these sequelae is unlikely. PW4 is the person employed to look after the appellant. He is assisting the appellant and accompanying him to go to the Panchayat. PW5 doctor who had issued Ext.A18 certificate was examined. The doctor gave evidence that the patient required help of others for doing daily routine. He has not shown any significant improvement. The last follow up was on 8-6-2000. It is unlikely that he can attend office and he needs prolonged treatment. The copy of the treatment chart is also produced which was marked as Ext.X1. In the accident the petitioner had sustained serious brain damage. The Elanji Panchayat Vice-President was examined as PW7. He said that the appellant was Standing committee chairman of the Panchayat. He was incapable to function as the Chairman. Once in a month the petitioner would attend the office and put signature. According to PW7, the other committee members will be helping the petitioner. According to PW7, the injured is incapable for doing work as a Standing Committee Chairman. On the basis of the available factors, compensation can be fixed. I find that the petitioner had sustained severe brain injury. He needs help of others to do daily routine work and the complete recovery is unlikely. The prolonged treatment is required”. MFA 268/01 4 After finding so, the tribunal fixed only 10% disability. It is submitted that his memory is lost and he cannot do any work and compensation may be granted for 100% disability on loss of earning power. We are of the opinion that if he requires help of another person through out his life and he is unable to do anything his own and he is having the difficulty as found by the tribunal, compensation should be granted for 50% disability, as he maybe able to do some work sitting in his house. 4. With regard to the income of the appellant, the tribunal has taken Rs.2,000/- as his monthly income for the purpose of compensation. According to the claimant, he was an Engineer. He was also doing Civil Engineering works. He was an income-tax assessee. Ext.A13 is the certificate issued from Continental Construction, New Delhi certifying that the appellant was in the rolls of the company since October, 1972 till 1993. Therefore, he was doing construction work and according to him, he was getting Rs.10,000/- per month for this count. Ext.A16 is the income-tax statement. It shows that the amount received for construction work during assessment period 1996- 97 was Rs.7,49,292/- and he gets an additional amount of Rs.14,986/-. MFA 268/01 5 He was the Chairman of the Standing Committee of the Panchayt. It is true that income at the time of the accident was not proved, but he was a qualified Engineer and he was doing construction work apart from his agricultural work. He was having agricultural income also. If that be so, at least Rs.3,000/- should have been fixed as the monthly income. Accident occurred on 10-8-1997. He was 48 years at the time of the accident. Taking guidance from Second Schedule, 13 as the multiplier. If that be so, compensation payable will be Rs.2,34,000/-(3000 x 12 x 50/100 x 13). The tribunal has awarded only Rs.31,200/- for disability and loss of earning power. Therefore, he will be entitled to Rs.2,02,800/- as additional compensation on this count. The tribunal held that he was unable to do any work during the initial period of treatment for eight months and towards loss of amenities, discomfort suffered and loss of actual inconvenience caused Rs.16,000/- was granted. Since Rs.3,000/- his monthly income, he will be entitled to Rs.6,000/- more on that count. Only Rs.1,000/- was awarded for bystanders expenses. PW4 deposed that he was appointed as bystander and getting a salary of Rs.3,000/- apart from food and accommodation. MFA 268/01 6 We are of the opinion that Rs.16,000/- can be awarded for bystanders expenses taking Rs.2,000/- per month for the first eight months' treatment period. Hence, additional amount payable under this count is Rs.15,000/-. We are awarding a lower amount under this head taking into account that the interest part of the award. Interest that can be used for bystander's expenses and future medical expenses. Therefore, additional compensation payable will be Rs.2,23,800/-. The above amount should be deposited by the 3rd respondent Insurance Company with 7.5% interest from the date of application till its deposit. It is argued that compensation awarded under other heads are very meager. Considering the total amount granted, we are not inclined to grant enhancement of compensation under other heads. Since the accident occurred in 1997 and 10 years have passed, we allow the petitioner to withdraw the amount. The appeal is allowed as above. J.B. Koshy, Judge. K. Hema, Judge. MFA 268/01 7 mn.