IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 MACA.No. 286 of 2003 ------------------------------------ OPMV.738/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: RAJESH, S/O. K.P. VINCENT, KATHIRAPARAMBIL HOUSE, PARAPPUKARA, AYYAPPANCOIL VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS/RESPONDENTS: 1. K.M. BASHEER, AKKOTH HOUSE, CHERUTHONI P.O., VAZHATHOPPU, IDUKKI. 2. MEVI, S/O. ANTONY, NJAVALUMKAL HOUSE, ELAPPARA VILLAGE. 3. THE ORIENTAL INSURANCE COMPNAY LTD., REP. BY ITS BRANCH MANAGER, THODUPUZHA. 4. MANAGING PARTNER, NATIONAL TILE WORKS, KOLATHRA, FAROOK, CALICUT. ADV. SRI.MATHEW JOHN (K) FOR R1 SRI.SUJESH MENON V.B. FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.286 of 2003 --------------------------------- JUDGMENT Balachandran, J. Appellant, who was a student aged 17, sustained injuries on 3.6.1996 as the jeep, in which he was travelling, capsized on account of the negligence of the second respondent driver. He claimed a total compensation of the Rupees Eight lakhs. The Tribunal awarded a total amount of Rs.2,67,000/- by way of compensation. Appeal is filed claiming enhancement in compensation. Hence, we are considering only that aspect in this appeal. 2. The Tribunal has discussed in detail the injuries sustained to the appellant/petitioner and the treatment undergone by him with reference to the various documents as follows: “The petitioner was first taken to the Medical College Hospital, Kottayam. Exhibit A5 is a copy of the wound certificate. He was discharged on MACA 286/03 2 10.6.1996. It appears from the bill which forms part of Exhibit A9 that he was treated as an inpatient from 10.6.1996 to 12.6.1996 at Medical Trust Hospital, Ernakulam. On 12.6.1996, he was again admitted to the Medical College Hospital, where he was treated as inpatient up to 24.7.1997, which is seen from Exhibit A11 copy of the discharge card. On 9.8.1996, he was admitted to St.John's Hospital, Kattappana. He was discharged on 25.8.1996. Again he was treated as an inpatient from 1.9.1996 to 6.9.1996 which is disclosed by Exhibit A7 certificate. For the third time, he was admitted to Medical College Hospital on 15.9.1996. His treatment as an inpatient on that occasion came to an end on 27.9.1996. Thereafter, he was treated as an inpatient during the following period. From 1.11.1996 to 18.11.1996, from 2.12.1996 to 7.12.1996, from 7.2.1997 to 10.2.1997, from 25.4.1997 to 30.4.1997, from 2.6.1997 to 9.6.1997, from 14.7.1997 to 19.7.1997, from 10.11.1997 to 22.11.1997 and from 5.2.1998 to 14.2.1998. The treatment was at St.John's Hospital, Kattappana. The documents mentioned above prove that the petitioner had following injuries: 1. Compound fracture of shaft of the left femur with a lacerated wound 6 x 3 x 2cm. 2. Crush injury on the left forearm MACA 286/03 3 and the wrist with loss of skin and soft tissue. 3. Fracture of both bones of the forearm (lower third). During the period in which he was treated as an inpatient for the second time at the Medical College Hospital his left hand was amputated below the left elbow. Skin grafting was done at St.John's Hospital on 16.8.1996. On 1.9.1996 he was admitted to St.John's Hospital with a complaint of socking of the hips spica (bandage). He was treated with wound care through a window. During his treatment as an inpatient at Medical College Hospital from 16.9.1996 to 27.9.1996 his plaster cast was removed and he was advised partial weight bearing with crutches and a laca corset. Later, he developed pain and swelling of the left thigh and was admitted to St.John's Hospital, Kattappana on 1.11.1996. There, delayed union of the fracture of the femur was noticed. Exterior fixation was given on 7.11.1996. He visited the hospital as an outpatient after his discharge. For gait training he was admitted to the same hospital on 2.12.1996. Infection of the wound was again noticed. He was treated for that. External fixation was removed on 2.6.1997. On 14.7.1997 he sustained a re-fracture of the same femur. Functional cast brase was applied on 10.11.1997. Partial weight bearing for 2 months was advised. These facts are borne out by Exhibit A7 certificate MACA 286/03 4 issued from St.John's Hospital, Kattappana and the other documents mentioned above.” It cannot be gainsaid that the accident has caused the appellant/petitioner permanent disability and that it has affected his earning capacity in future at the young age of 17 itself. 3. Exhibit A16 is the disability certificate issued by the District Disability Board, Idukki. The disability is rendered to him due to the traumatic amputation of his left hand below the elbow and shortening of the left leg. Disability has been assessed by the Board at 60%. The Tribunal has observed that the appellant when examined as PW1, had given evidence that the original of Exhibit A16, which is only a copy, was produced before the Social Welfare Department so as to obtain identity card for handicapped persons. Tribunal has accepted Exhibit A16 and assessed his disability, as certified by the Board. Being a MACA 286/03 5 student, his income was assessed only at Rs.15,000/- per annum, which is the notional income fixed for non earning persons as per the second schedule to the Motor Vehicles Act. Apt multiplier of 16 was taken by the Tribunal to claculate the compensation for permanent disability and for loss of earning power. Tribunal fixed the compensation at Rs.1,44,000/- on that count. In the instant case, the accident had occurred on 3.6.1996. Appellant was a 17 years old student, who was prosecuting his studies, at the time of the accident. We are of the view that for assessing the compensation for permanent disability and loss of earning power at least an amount of Rs.1,500/- per month ought to have been taken as his earnings. If that be so, the compensation payable to him for permanent disability and loss of earning power will be RS.1,72,800/- (1500 x 12 x 60/100 x 16). Tribunal has awarded only an amount of Rs.1,44,000/- on that count. Hence, the appellant MACA 286/03 6 would be entitled to the difference between the two sums by way of additional compensation on the above count and that comes to Rs.28,800/-. 4. The Tribunal has awarded only an amount of Rs.5,250/- towards bystanders expenses for a period of seven months, fixing Rs.750/- per month. Considering the duration of treatment undergone by the appellant and the disability occasioned to him, we are of the view that the expenses for bystanders at the rate of Rs.750/- per month should have been awarded to him for a period of 14 months. Hence, the appellant will be entitled to an additional amount of Rs.5250/- on that count. Appellant claimed an amount of Rupees One lakh for pain and suffering and loss of enjoyment of amenities in life. The Tribunal has awarded only an amount of Rs.35,000/- on that count. We are of the view that for a youngster aged 17, who is deprived of all enjoyment of amenities in life and who has suffered much pain on account of the injuries sustained to MACA 286/03 7 him in the accident, has to be paid a further amount of Rs.10,000/- also on that count. Hence, the total amount to which the appellant would be entitled by way of compensation is Rs.44,050/- (28,800 + 5,250 + 10,000). The third respondent Insurance Company shall deposit the above amount of Rs.44,050/- within two months from today with interest at 7.5% per annum from the date of application till date of deposit. On deposit of the above amount, appellant is allowed to withdraw the same. Appeal is, thus, allowed in part. (J.B.Koshy, Judge) 30th October, 2008 (K.P.Balachandran, Judge) tkv MACA 286/03 8 J.B.Koshy & K.P.Balachandran, JJ. -------------------------- M.A.C.A.No.286 of 2003 -------------------------- JUDGMENT 30th October, 2008