IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 MFA.No. 104 of 2003() -------------------------------- OPMV.1331/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT: PETITIONER IN OP. (MV)NO.1331/95: --------------------- SRI.JOY, AGED 32, S/O. CHACKO, RESIDING AT PARAYIL HOUSE, CHENTHANDE, THACHAMPARA P.O., MANNARGHAT, PALAKKAD. BY ADV. SRI.JIJO THOMAS RESPONDENTS: RESPONDENTS IN O.P (MV)NO.1331/95. ------------------------- 1. SRI. M. VENKITACHALAM, AGE NOT KNOWN S/O. MADHINAIDU, 24/1-2, 2ND MAIN ROAD, KALASIPALAYAM NEW EXTENSION, MANGALORE. (OWNER OF KA 09/1458 LORRY). 2. SRI B. GANESAN, AGE NOT KNOWN, S/O. PONNAKOUNDER, C/O. R. MUTHAMMAL, ANNA NAGAR, NEAR TVS ZUZUKI AUTO PARTS, NEAR MTC THEATRE, METTUR DAD-1. (DRIVER OF KA 09/1458 LORRY). 3. THE ORIENTAL INSURANCE CO.LTD., CITY BRANCH OFFICE NO.1, CSI THEYAS COMPLEX, SAYYAFI RAO ROAD, MYSORE-1, REPRESENTED BY ITS BRANCH MANAGER, (INSURER OF KA 09/1458 LORRY). 4. SMT. MARIYAMMA, AGE & FATHER'S NAME NOT KNOWN, PANDARAKOTTIL HOUSE, KARIMBA P.O., MANNARGHAT. (LEGAL REPRESENTATIVE OF THE OWNER AND DRIVER OF KRU 3835 MINI LORRY). M.F.A. NO.104/2003 5. THE UNITED INDIA INSURANCE CO.LTD., MAIN ROAD, MANNARGHAT, 678 582, REPRESENTED BY ITS BRANACH MANAGER, (INSURER OF KRU 3835 MINI LORRY). BY ADV. SRI.M.JACOB MURICKAN FOR R3 SRI.A.A.MOHAMMED NAZIR FOR R5 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.F.A.NO.104 OF 2003 () ----------------------------------- Dated this the 30th day of July, 2008 J U D G M E N T KOSHY,J. Appellant/petitioner sustained injuries in a motor accident on 8.2.1995. He claimed an amount of Rs.2 lakhs contending that accident occurred due to the negligence of the 2nd respondent, driver of the lorry owned by the 1st respondent and insured by the 3rd respondent Insurance company. He was travelling in a mini lorry with his merchandise and the above lorry was hit by the lorry driven by the 2nd respondent. Tribunal found that 2nd respondent was guilty of negligence and 1st respondent has got vicarious liability and there was valid insurance policy issued by the 3rd respondent Insurance company. Only dispute is regarding the quantum of compensation as the amount awarded by the tribunal was only Rs.83,350/-. 2. According to the appellant, he was aged 25 and he contended that maximum multiplier of 18 should be taken for MFA.104/03 2 calculating compensation. In one of the medical certificates, his age was mentioned as 35. Therefore, tribunal has taken his age between 30 and 35 even though in all other medical certificates, the age was mentioned as 25. In any event, tribunal has taken 17 as the multiplier. We see no ground to enhance the multiplier fixed by the tribunal. According to him, he was a whole sale merchant in vegetable products. He was travelling with the goods from Tamil Nadu. When the accident occurred his income was Rs.5,000/- per month. No evidence was adduced to prove his income. We are of the opinion that even if he get only Rs.100/- per day as profit from his business, Rs.2,500/- can be taken as the monthly income. Therefore, we fix Rs.2,500/- as the monthly income instead of Rs.1,500/- fixed by the tribunal. With regard to the injuries concerned, Ext.A3 is the wound certificate. It shows that there was contused laceration in the occipital region, contusion in the cerebral region, multiple abrasion on both legs and arm and bifrontal subdural afusion and intracerebral haemorrhage. He was inpatient in the hospital for a month. Ext.A15 scan report shows that there were multiple small haemorrhage contusion mild subarachnoid haemorrhagic and MFA.104/03 3 thin bifrontal hygromas and C.T. scan report of 8.5.1996 shows that there were mild changes of bilateral cortical atrophy. Doctor certified 28% disability. It is mentioned in Ext.A17 certificate and PW2, doctor was examined to prove the above. He noticed the loss of smell of both nostrils. He also noticed that he is still suffering from epilepsy. There were post traumatic head ache, behavioral change, easily getting angry, loss of memory and failure to recognise relatives and friends. Even though these disabilities were accepted, tribunal assessed only 10% disability. No reason was stated in not accepting the disability certificate issued by the Doctor, which was proved by examining the Doctor. As far as a young man is concerned, loss of memory and failure to recognise his friends and relatives is a very serious disability. It was contended by the claimant that he has actually lost 100% disability. We are of the view that tribunal ought have awarded atleast 28% disability as assessed by the Doctor. If that be so, compensation payable will be Rs.2,500 x 12 x 28/100 x 17 = Rs.1,42,800/-. Tribunal has awarded an amount of Rs.30,600/-. Therefore, he is entitled to additional amount of Rs.1,12,200/-. Tribunal found that he was unable MFA.104/03 4 to do any work for three months and Rs.4,500/- was awarded taking Rs.1,500/- as the monthly income. Since we have enhanced the monthly income to Rs.2,500/-, he will be entitled to Rs.3,000/- more on that ground. Therefore, additional amount payable will be Rs.1,15,200/-. It is contended that compensation awarded for pain and sufferings and other heads are inadequate. But considering the total amount awarded, we are not enhancing the same. Therefore, additional amount of Rs.1,15,200/- should be deposited by the 3rd respondent Insurance company with 7% interest from the date of application till its deposit over and above the decreed amount by the tribunal. On deposit of the amount, appellant is allowed to withdraw Rs.25,000/- and balance should be deposited in a nationalised bank for five years enabling the appellant to withdraw quarterly interest. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO.104 OF 2003 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 30th July, 2008