IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 MACA.No. 1202 of 2006(A) ------------------------------------- O.P.(MV).NO.1774/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR. .................... APPELLANT/ PETITIONER: -------------------------------------- PAULOSE, S/O. KURIAKO, AGED 47, KALLAPPARA HOUSE, THAMARACHALPURAM KARA, KIZHAKKAMBALAM VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR), ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. JOSEPH SEBASTIAN, S/O. DEVASSY, MUTTATHOTTIL HOUSE, KIZHAKKAMBALAM KARA, KIZHAKKAMBALAM VILLAGE. 2. THE ORIENTAL INSURANCE CO.LTD., EBENEZER GARDEN, 1ST FLOOR, EDAPPALLY, COCHIN. 3. THE NATIONAL INSURANCE CO.LTD., URUMBATH BUILDING, ALUVA. ADV. SRI.RENNY AUGUSTINE FOR R1, ADV. SRI.V.P.K.PANICKER FOR R2, ADV. SRI.E.M.JOSEPH FOR R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. Koshy & V.K.Mohanan, JJ. -------------------------------------- M.A.C.A. No. 1202 of 2006 --------------------------------------- Dated this the 7th day of October, 2008 Judgment Koshy,J. Appellant at the age of 40 met with an accident while he was riding his motor cycle on 23.11.1998 when a scooter driven by the first respondent hit his motor cycle. The above scooter was insured by the second respondent insurance company. Appellant's motor cycle was insured by the third respondent insurance company. The police charge-sheeted both the appellant as well as the first respondent rider of the scooter. From the evidence, the Tribunal correctly found that the accident occurred due to the negligence of both the riders and, therefore, apportioned negligence equally between the appellant and the first respondent rider of the scooter. Since appellant cannot claim insurance from his own insurer and third respondent was exonerated and after calculating the compensation, 50% was ordered to be paid by the appellant, we are of the opinion that apportionment of negligence by the tribunal needs no interference on the facts and circumstances of the case. Then, the question is what is the amount of compensation to be awarded. According to the claimant, he was getting Rs.9,000/- M.A.C.A.No.1202/2006 2 per month. He was the managing partner of a financing company. Income-tax certificates for three years were also produced. But, the Tribunal fixed only Rs.1,500/- as the monthly income because it is difficult to find out his personal income and further noticed that the financing company continued its business. He was disabled to contribute his part in the business due to the the extent of disability and compensation is awarded only with respect to the percentage of permanent disability. We are of the view that at least Rs.2,500/- ought to have been fixed as the monthly income for the purpose of calculation of compensation. With regard to the disability, the wound certificate show the following injuries: "Lacerated wound 3 x 1 c.m. over right eye brow, bleeding from nostrils right ear, contusion right eye, loss of teeth, type II fracture mandible, compound depressed fracture right frontal bone." He was an inpatient in the hospital from 23.11.1998 to 9.12.1998 and thereafter from 31.12.1998 to 14.2.1999. Thus he had undergone inpatient treatment for 61 days. Ext.A9 medical certificate shows that he had the following injuries: "On examination GCS of E1 V1 M5 (7/15), vitals stable, bilateral black eyes, lacerated wound over (R) eyebrow and nasal bleed were present. Patient had laboured breathing for which he was intubated. M.A.C.A.No.1202/2006 3 CT brain showed minimal compound depressed fracture (R) frontal bone and fracture para nasal sinuses and mandible fracture. Patient developed cardiac arrest for which he was actively resuscitated and revived. Patient underwent mandibular and maxillary fracture fixation and tracheostomy under GA on 25.1.1998. Patient developed CSF rhinorrhea for which theco pertitioneal shunt was done on 28.11.98. Patient had been readmitted on 30.12.2000 for breakthrough seizures. Patient was advised follow up on OPD basis and was last seen on 08.05.2003. He has been advised to continue antiepileptic medication (Tab. Eptoin 100 mg. 1-0-1 and Tab. Pheno 60 mg 1-0-1) for a prolonged period to prevent epilepsy in future." He was examined by the medical board of the General Hospital, Ernakulam consisting of seven expert doctors in various fields and the medical board certified that there is 22.5% disability. The certificate of the medical board states as follows: "Now, on examination of OPG Rt. shows (i) dislocated Right Condylar head of mandible out of the articulatary fossa. (ii) Two fixed stainless steel plates on the midline of mandible. (iii) Both Aesthetic and functional losses. His disability is assessed to be 22.5% as per Manual for Doctors to evaluate permanent physical impairment." M.A.C.A.No.1202/2006 4 The Tribunal fixed only 10% disability for the purpose of calculating compensation. While calculating compensation for disability, effect of the accident with his business is a matter to be considered to assess damages caused due to the accident and considering the injuries the loss of earning capacity can only be 10% and we see no ground to change the assessment made by the Tribunal. If that be so, compensation for disability will be Rs.2,500 x 12 x 16 x 10 = 100 Rs.48,000/-. The Tribunal has awarded Rs.28,800/- for permanent disability and loss of earning power. Therefore, he will be entitled to Rs.19,200/- for disability and loss of earning power. The Tribunal has granted a compensation of Rs.9,000/- towards actual loss of earning. He was unable to do any work for a period of six months. Since we have increased the income, he will be entitled to Rs.6,000/- more under that head. Actual medical bills were reimbursed. But, even though he was in the hospital for 61 days and continued the treatment for about six months, only Rs.2,000/- was awarded for bystander's expenses. We are of the view that Rs.4,000/- more should be granted as bystander's expenses. During the inpatient treatment period, there will be many expenses not covered by bills. Since he was hospitalised four times and for M.A.C.A.No.1202/2006 5 further check up, Rs.8,000/- more should be awarded towards transportation and incidental charges. The doctor advised follow up on OPD basis and was last seen on 8.5.2003. He was advised to continue anti-epileptic medication for a prolonged period to prevent epilepsy in future. It was also noticed that he was admitted in December, 2000 for breakthrough seizures. So, for further medical expenses another Rs.5,000/- ought to have been awarded. Thus, additional compensation payable will be Rs.42,200/-. Out of the above, 50% has to be deducted. Therefore, additional compensation actually payable will be Rs.21,100/-. The above amount of Rs.21,100/- should be deposited by the second respondent insurance company with 7.5% interest from the date of application till its deposit. On deposit of the amount, the appellant is allowed to withdraw the same. J.B.Koshy Judge V.K.Mohanan Judge vaa M.A.C.A.No.1202/2006 6 J.B. KOSHY AND V.K.Mohanan,JJ. ------------------------------------- M.A.C.A. No.1202/2006 ------------------------------------- Judgment Date:7th October,2008