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 21ST MAY 2008 / 31ST VAISAKHA 1930 MFA.No. 596 of 2003(F) ---------------------- OA.39/2001 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: -------------------- ABDUL KAREEM, AGED 47 YEARS, SON LATE MER. MAMMOO, XIII/549, KOCHANGADI, KOCHI-682 005. BY ADV. SRI.P.M.MOHAMMED SHIRAZ RESPONDENT: ------------------------ UNION OF INDIA, OWNING SOUTHERN RAILWAY, REPRESENTED BY ITS GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.596 OF 2003-F ---------------------------------------------------- Dated this the 21st day of May, 2008. JUDGMENT Koshy, J: The appellant/claimant while travelling in Train No.6602 from Mangalore to Ernakulam on 22.6.2001 the train fell into the river at Kadalundi. As a result of the accident, the appellant suffered head injury and fracture and he claimed compensation before the Railways Claim Tribunal contending that he suffered head injury and fracture on left 9th rib in addition to contusions and abrasions. He was immediately taken to nearby Koya's Hospital and thereafter to General Hospital, Ernakulam, from there referred to the Medical Trust Hospital, Ernakulam, for outpatient treatment. He was a wayside bunk owner, according to him. As a result of the accident, he is unable to do any work. He cannot open the bunk now. Only when his son is coming weekly, the bunk is being opend and he is not able to count the money or to take any materials. According to him, as the injuries sustained in the accident deprived him from doing any work, he is entitled to get compensation. Originally, he claimed compensation for Rs. Two M.F.A.NO.596/2003 . 2 lakhs. But, after taking note of amendment of the Railway Accident and Untoward Incidents (Compensation) Rules, 1990, in 1997 the claim amount was enhanced to Rs. Four lakhs. The Tribunal found that there is no head injury but awarded compensation of Rs.40,000/= as provided under Item - 33 of Part III of the Schedule for the fracture on the 9th rib. According to the Tribunal, injuries on the lumbar region are not included in the schedule. The total amount granted was only Rs.60,000/= with interest from the date of award. 2. It is contended by the appellant that the finding of the Tribunal that there was no head injury is incorrect. It is further contended that he is entitled to interest from the date of the accident itself. He has got a further case that the Railway Accident and Untoward Incidents (Compensation) Rule is applicable when there is no fault on the part of the Railways. Here the accident occurred with the fault of the Railways as the train fell into river and the appellant is entitled to get more amount than that is provided under the Rules. The Tribunal found that the M.F.A.NO.596/2003 . 3 appellant is a bona fide passenger and the accident occurred as is alleged. The appellant had a further case that he has three children. One son is mentally retarded and the second daughter is physically handicapped. He was the only bread winner of the family. He and his family lost all hopes and he cannot do anything worthy. Even though in paragraphs 6 and 7 of the award medical reports were referred, in paragraph 8 the finding of the Tribunal is as follows: “On appreciation of the medical evidence adduced before us, we are of the opinion that the applicant has got fracture to his 9th rib left and had no head injury and abrasion and contusions got cured subsequently”. 3. We are afraid to support the above finding as it is totally opposed to evidence adduced in this case. We have gone through the medical reports and oral and documentary evidence. It is true that the appellant was immediately admitted to Koya's hospital, which is a nearby hospital to the place of accident. There it was certified that there was no apparent head injury. Ext.P2 is a M.F.A.NO.596/2003 . 4 discharge summary dated 23.6.2001. It is noticed that there was no sign of fracture but there was frontal headache. There was no sign of head injury. It needed further investigation. Thereafter, he was treated in General Hospital, Ernakulam as can be seen from Ext.P3. He was referred to Medical Trust Hospital, Ernakulam on 23.6.2001. Various examinations were conducted in that hospital. Ext.P5 treatment summary dated 28.6.2001 reads as follows: “On admission his GCS was E3 M6 V4 (13/15) and his pupils were equal and reacting. There was no focal neurological deficit. His C.T. Scan brain showed small bleed in the frontal horn of left lateral ventricle. He also had pneumonitis of the base of left lung. He is being treated conservatively. In view of his bleed in the brain, his injuries are considered as grievous” Thereafter C.T. Scan was taken which shows bleeding in the ventricles. Ext.P7 C.T. Scan report dated 25.6.2001 shows that “small bleed persist in the frontal horn of left lateral ventricles”. Ext.P9 medical report issued on July 21 reads as follows: “C.T. brain showed left lateral periventricular contusion with intraventricular extension, bleed in M.F.A.NO.596/2003 . 5 the third ventricle and frontal horn of left lateral ventricle. He also had fracture lift ninth rib. He was treated conservatively. He showed slow and steady recovery. He was discharged on 6.7.01. Following discharge he was reviewed in the clinic on 17.7.01. He is still suffering from post head injury sequalac in the form of memory disturbances. He is advised to continue treatment for the same.” 4. The treatment records were produced which were marked as Exts.P12 to P29, 37,38 & 45 to 49. The appellant was discharged from the Medical Trust Hospital on 6th July, 2001 as he regained consciousness. The Neurosurgeon who treated him was examined in court. After making the medical records he deposed as follows: “The report of the scanning was that he had internal bleeding. In Ext.P5, I have opined that the injury sustained by the patient was grevious in nature. The patient was discharged from the hospital on 6.7.2001. In have stated the condition in Ext.P12.” This shows that no head injury can be detected by open eyes without proper investigation. It can be detected only by C.T. Scan. After making Exts.P6 and P7 scanning reports, the Neurosurgeon was questioned and he answered as follows: M.F.A.NO.596/2003 . 6 “Dr. what was the physical condition of the patient? when you saw him first? (Qn) with permission. Ans. He w as semi-conscious. The patient had abrasions over left shoulder, left hiliar portion, contusion over left lower chest and contusion in left lumbar region. Whether the patient was having head injury? (Qn) Ans. Appearingly, he had no head injury, but such injury internally affected could be detected by C.T. Scan.” During the cross examination he had stated that the injuries are not included in the schedule. He also stated that he is holding M.ch in Neurosurgery from Madurai University. He also stated after the discharge also, the appellant had been treated as an out patient. He also deposed that even though the appellant had regained consciousness, he has memory deficiency. After cross examination he was questioned by the Tribunal and the questions and answers are as follows: “Qn. by T. Whether the patient a can lead normal avocation with his present physical condition? M.F.A.NO.596/2003 . 7 Ans. He is still having memory deficit. He cannot, but with the help of others. Qn. Is there any chance of complete recovery by medical treatment, if done continually? Ans. I cannot say.” 5. So, from the medical evidence, it is clear that he cannot do normal avocation of work without the help of others. Considering the medical evidence, we are of the opinion that apart from the fracture on the rib there is head injury. He has produced various medical bills. He has also produced certificates from the village authorities regarding the disability of his children as stated by him. Since there was head injury which is preventing him doing any work in a reasonable manner, we are of the view that his case will come under Rule 3(2) of the Railway Accident and Untoward Incidents (Compensation) Rules, 1990 amended with effect from November, 1997. It reads as follows: “The amount of compensation payable for injury not specified in Part III of the Schedule but which, in the opinion of the Claims Tribunal is such as to deprive a person of all capacity to do any work, shall be [rupees four lakhs]. M.F.A.NO.596/2003 . 8 6. Apart from the above there are schedule injuries also. They are fracture on ribs and in lumbar region. But the maximum compensation payable is only Rs. Four lakhs under the Rules. With regard to the interest part no specific provision is in the Rules. In the absence of specific provision in the Motor Vehicles Act, on the basis of the Supreme Court decisions interest is awarded from the date of the application in motor accident case. Normally, interest at the rate awarded by the bank is awarded from the date of the application. Under the Workmen's Compensation Act interest is payable under Section 4 A from the date of the accident. Under the Railway Accident and Untoward Incidents (Compensation) Rules, the amount payable is fixed. On the date of the injury, the claimants are entitled to compensation from the Railways and therefore it is argued that interest is payable from the date of accident but considering the ratio of the decision of the Supreme Court in motor accidents cases, We are of the opinion that interest is payable at least from the date of application. M.F.A.NO.596/2003 . 9 Considering the facts and circumstances of the case, we award Rs. Four lakhs as compensation with 6% interest from the date of the application. After deducting the amount already deposited by the Railways, balance should be deposited by the Railways within two months from the date of receipt of a copy of this judgment. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is allowed. J.B. KOSHY, JUDGE P.N. RAVINDRAN, JUDGE. cl M.F.A.NO.596/2003 . 10 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.596 OF 2003-F JUDGMENT 21st day of May, 2008.