IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 MFA.No. 613 of 2002() ------------------------------ OPMV.2826/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: PETITIONER IN OP(MV)NO.2826/96 OF MACT, ERNAKULAM --------------------- MR.M.M.JOHNY, AGED 37 YEARS, S/O.SRI.MICHAEL, MUTTAURUTHIL HOUSE, CONVENT ROAD, PONNURUNNY, KOCHI, ERNAKULAM DISTRICT. BY ADV. SRI.T.K.RADHAKRISHNAN SMT.K.L.SREEDEVI RESPONDENTS: RESPONDENTS IN OP(MV) NO.2826/96 ------------------------- 1. MR.A.MOHAMMED KUNJU, VAIRAVAN PARAMBU, ELAMAKKARA P.O., KOCHI-26. 2. MR.SAHADEVAN, S/O.SRI.VASU, VELICHIRA HOUSE, NEAR PATTANAKKAD L.P.SCHOOL, PATTNAKKAD P.O., CHERTHALA. 3. THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, M.G.ROAD,KOCHI-16. ADV. SRI.E.M.JOSEPH FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.613 OF 2002-C ---------------------------------------------------- Dated this the 1st day of July, 2008. JUDGMENT Koshy, J: The appellant/claimant sustained serious injuries in amotor accident on 4..2.1996. He claimed a total compensation of Rs.5 lakhs. The Tribunal though held that the accident occurred due to the negligence of the driver of the autorickshaw insured by the third respondent, insurance company, awarded only an amount of Rs.42,750/=. Only the quantum of compensation is disputed in this appeal. 2. The appellant/claimant was an autorickshaw driver by profession. He was aged 32 at the time of the accident. He was maintaining a family. The Tribunal has fixed only Rs.1,500/= as monthly income. According to the appelalnt, his monthly income was more than Rs.4,000/= as he was getting more than Rs.150/= per day. We are of the view that the Tribunal ought to have taken Rs.2,500/= as the monthly income instead of Rs.1,500/=, as an auto rickshaw driver, he will earn at least Rs.100/= per day and he may MFA.No.613/02 . 2 get maximum 25 days work. The Tribunal found that he was completely bed ridden for three months and for loss of earnings, Rs.4,500/= was awarded. Since we have increased the monthly income, he is entitled to Rs.3,000/= more under this head. He suffered the following injuries: "1. Lacerated wound on the frontal region extending to the left temporal region, a apiece of bone of left frontal region is fractured and seen outside. Bleeding present. Contaminated. 2. Lacerated wound on the right ear bone 1x0.2x0.2cm 3. Abraded cantunal on the right temporal region. 4. Bleeding through right ear and nose. Patient was admitted in the department of Neurosurgery. Ecision of the comminuted fracture of skull was done under G.A. X-ray: Skull: Fracture of skull left fronto parito temporal region. C.T.Scan: Brain: Cominuted fracture bifrentally. Fracture of left orbital roof fracture of base of parietal region Small acute extradural haematoma right frontal region preune cephalus" He was an inpatient for 13 days. He did not produce any disability certificate before the Tribunal. Even though we have referred the appellant for examination by the Medical Board, the communication from the Medical Board was not reached. Thereafter, he produced a medical certificate issued by Dr.R.R. Ravi, MFA.No.613/02 . 3 M.Ch of Medical Trust Hospital, Ernakulam. The medical certificate reads thus: "Mr. Johny M.M was admitted to this hospital (Hosp.No.500537) on 4.2.1996 following an alleged RTA with Head Injury (CT Brain -Bi-frontal depressed fracture). He underwent excision of depressed segment on 4.2.1996 and was discharged on 17.2.1996. On 12.4.1996 and was discharged on 17.2.1996. On 12..4.1996 he was readmitted with CSF rhinorrhoea for which he underwent fascia lata grafting with cranioplasty. he is on OPD follow up. At present he is suffering from post traumatic sequelae in form of loss of smell, double vision, memory disturbances and giddiness. His disability is 70 percentages". 3. We have seen the appellant. According to him, he had loss of memory and giddiness. He was accompanied by his wife. Considering the medical certificate, wound certificate etc., we are of the opinion that the compensation for disability can be granted considering 20% disability. According to the appellant, he is unable to do any work because of the injuries. At the time of accident, he w as aged 32 years. Even though 17 can be taken as the multiplier, taking guidance from the 2nd schedule we fix 16 as the multiplier in this case and the compensation payable will be Rs.96,000/= (2500x12x20/100x16). The Tribunal has awarded only an amount of Rs.8,000/= for permanent disability and loss of earning capacity. MFA.No.613/02 . 4 Therefore, the appellant will be entitled to an additional amount of Rs.88,000/=. 4. The appellant has produced Ext.A9 medical bills amounting to Rs.26,859/=. The Tribunal also noticed at Paragraph 9 that Ext.A9 was not disapproved by the contesting respondents but for medical reimbursement only Rs.9,739/= was awarded. On going through the medical bills produced, we are of the view that Rs.12,000/= more should be awarded for reimbursement of medical bills. It is true that there may be expenses not covered by medical bills during his inpatient treatment. But, we are not considering the same. It was argued that compensation granted under other heads are also very low. But considering the total amount granted, we are not enhancing the same. Thus additional compensation payable will be Rs. 1,03,000/=. Rs.1,03,000/= should be deposited by the 3rd respondent insurance company with 6% interest from the date of application till the date of deposit. On deposit of the above amount, the appellant is allowed to withdraw the same. The Tribunal found that there was no fitness certificate to the vehilce and there was violation of the policy condition. So, directed the insurance company to recover the amount from the insured. The insured was ex-parte before the tribunal. Notice sent was also returned unserved and finally notice was served by affixture and MFA.No.613/02 . 5 none appeared for R1. He also did not file any appeal. The finding of the Tribunal regarding recovery was not challenged. In the above circumstances, additional amount deposited also can be recovered by the 3rd respondent insurance company in execution of the award from the insured. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MFA.No.613/02 . 6 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.613 OF 2002-C JUDGMENT 1st day of July, 2008.