IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 MACA.No. 782 of 2003() ---------------------- OPMV.478/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONER: ----------------------------------- SATHYABHAMA, W/O. SREEDHARAN, RESIDING AT KATHAMOODIKKAL HOUSE, KAVALAPPARA, SHORNUR, OTTAPALAM TALUK, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENTS/RESPONDENTS: --------------------------- 1. KUMARAN, S/O. RAMANKUTTY, RESIDING AT KARIPPALIL VEEDU, AARANGOTTUKARA, THRISSUR DISTRICT. 2. C.T.THOMAS, S/O. C.A.THOMAS, RESIDING AT CHEMARIKKATTU HOUSE, SHORNUR P.O., OTTAPALAM TALUK, PALAKKAD DISTRICT. 3. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, FAIZEL BUILDING, OTTAPALAM, PALAKKAD. 4. JOSEPH, S/O. CHACKO, RESIDING AT MAMANASSERY VEEDU, MARUTHASSERRY, KOTTAYAM DISTRICT. 5. THE MANAGING DIRECTOR, M/S. ARUN TRAVELS, SHORNUR, PALAKKAD DISTRICT. 6. THE UNITED INSURANCE COMPANY LIMITED, BRANCH OFFICE, FAIZEL BUILDING, OTTAPALAM, PALAKKAD. ADV. SRI.P.MURALEEDHARAN FOR R3 & R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.782 OF 2003 (B) ----------------------------------- Dated this the 26th day of September, 2008 J U D G M E N T KOSHY,J. Appellant/claimant sustained serious injuries in a motor accident on 26.8.1999. She claimed a compensation of Rs.2,38,500/-. Tribunal awarded a total amount of Rs.79,350/- with interest including reimbursement of actual medical expenses represented by bills amounting to Rs.36,000/- and directed R3 and R6 Insurance companies to deposit the above amount as drivers of the two vehicles involved in the accident were found equally negligent. Only dispute in this appeal is regarding the quantum of compensation. 2. On going through the award, we are of the opinion that tribunal has considered the injuries mentioned in the accident but did not award compensation on a scientific basis. Tribunal noticed as follows: MACA.782/03 2 “Ext.A30 is the copy of the wound certificate issued from West Fort Hospital, Thrissur. As per the said document, it can be seen that the petitioner was having contusion on the right upper arm and tenderness (L) fossa and fracture (R) humerus shaft with radial nerve palsy. The petitioner is admitted on 26.8.1999 and discharged on 15.9.1999. The petitioner also produced a discharge summary card, she was admitted on 26.8.1999 and the date of discharge is 15.9.1999. In the column of final diagnosis, it is noted as cerebral contusion. In the history and physical findings noted as disoriented restless and agitated, fracture right humerus with wrist and injury on occipital area. Another discharge card also seen produced which shows that there is comminuted fracture distal 1/3 (R) humerus with radial palsy and ORIF (R) humerus. The petitioner also produced another certificate from West Fort Hospital which shows that the petitioner was admitted therein on 28.8.1999 and discharged on 15.9.1999 and sustained comminuted fracture shaft (Rt) humerus lower 1/3rd and (Lt) cerebral contusion, and head injury was managed by Dr.Deenaprasad. As per the records, she recovered gradually. At the time of discharge, she was having memory impairment and at present apart from the deficit due to the fracture (Rt) humerus, she is having depression and post traumatic headache and open injury. Petitioner produced another certificate issued from the same hospital. She had a MACA.782/03 3 comminuted fracture of the distal third of the (R) humerus with radial palsy. Her fracture was fixed surgically and the nerve palsy by splentage. She had a temporary disability of 45% for 8 weeks and 30% for another 12 weeks. At present she has residual stiffness of the (R) elbow and weakness of finger extensive of the (R) hand. She has permanent disability of 18%.” Tribunal did not fix monthly income for the claimant even on a notional basis and did not fix any percentage of disability but awarded Rs.10,000/- for disability and loss of earning power. Claimant was 40 years old at the time of accident. For calculating compensation on a multiplier method, we have to take guidelines from the 2nd Schedule. Under the 2nd Schedule, for an accident victim between the age group 40 to 45, 15 is the apt multiplier. So, we take 15 as the multiplier. She was a house wife. But services of the house wife to the family is not valueless. We are of the opinion that atleast Rs.1,500/- can be fixed as the notional monthly income. Accident occurred in the year 1999. Even though Doctor certified 18% disability, since the doctor was not examined, considering the injuries suffered, we are of the opinion that MACA.782/03 4 compensation ought have been granted atleast for 10% disability. If that be so, compensation payable will be Rs.1,500 x 12 x 10/100 x 15 = Rs.27,000/-. After deducting Rs.10,000/- granted for disability and loss of earning power, she will be entitled to Rs.17,000/- more for disability and loss of earning power. Due to the injuries, she could not have been able to do any work for about nine months. But it was also stated in the award that petitioner was continuing treatment for the whole year and only Rs.7,200/- was awarded towards temporary loss of income. In effect, only Rs.600/- was taken as the monthly loss of income. Since we have increased the monthly income to Rs.1,500/-, we award Rs.3,000/- more for actual loss of income. Thus, claimant will be entitled to Rs.20,000/- more than that is awarded by the tribunal. Even though it is argued that compensation awarded for medical and incidental expenses are very low, considering the total amount awarded, no enhancement is required and the additional compensation amount of Rs.20,000/- should be deposited by respondents 3 and 6 Insurance companies in equal proportion with 7.5% interest from the date of MACA.782/03 5 application till its deposit and on deposit of the above amount, appellant is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 26th September, 2008