IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 MACA.No. 738 of 2008() ---------------------- OPMV.994/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/2ND RESPONDENT: ----------------------------------------- NATIONAL INSURANCE COMPANY LTD., DIVISION, THRIPUNITHURA. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT/PETITIONER: ----------------------- TOM JOSEPH, 42 YEARS, S/O.JOSEPH, REP. BY NEXT FRIEND WIFE, LIZY, 37 YEARS, KISHAKKATHIL HOUSE, THOTTAKADU POST, KOTTAYAM, RESIDES AT MUREEKAL HOUSE, MAMMALA POST. RESP. BY ADV.SRI.T.K.KOSHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.922/2008 IN M.A.C.A.NO.738/2008 DISMISSED. 4.4.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ J.B. Koshy & K.Hema, JJ. -------------------------------------- M.A.C.A. No.738 of 2008 --------------------------------------- Dated this the 4th day of April, 2008 Judgment Koshy,J. Appellant insurance company questions the award of the Motor Accidents Claims Tribunal on the ground that quantum of compensation awarded by the tribunal is excessive. Respondent sustained serious injuries in an accident at the age of 42 due to the negligence of the driver of the vehicle insured by the appellant insurance company. As a result of the accident, he suffered severe injuries by which he was disabled by 100%. Apart from various other injuries, eye sight was also lost. There was haemorrhagic contusion frontal (L) temporal basal cisterm obliterated fracture frontal sinus paranorsal sinus, nasal bones outer wall (L) orbit, temporal zygona (L), oedema pnemocephalus. He was under electric ventillation and supportive measures for a considerable period. CT scan showed right temporal haemorrage contusion with mass effect. Emergency craneotomy/evacuation done under general anaesthesia. Application for compensation was filed through his wife as next friend claiming an amount of Rs.Ten lakhs as compensation. The tribunal awarded Rs.10,69,000/- out of which M.A.C.A.No.738/2008 2 Rs.2,243,000/- was for treatment expenses already incurred which were supported by bills. Only quantum of compensation is disputed in this appeal. 2. There is no dispute regarding finding of 100% loss of earning capacity. At paragraphs 36 and 37, the tribunal found as follows: "36. Ext.A12 is a medical certificate issued by the Medical Board stating that he is suffering from frontal lobe syndrome causing impairment of short term memory and emotional liability and also total blindness both eyes due to retinal detachment of right eye and post traumatic optic atrophy left eye. They assessed the visual disability at 100% (?) and loss of earning capacity at 100%. 37. PW2 is a member of a medical board. She is an eye specialist. Her evidence is that she conducted opthalmoscopic examination on the petitioner and there is no chance for improvement of his eye sight. According to her, even if there is a transplantation of an eye there is no chance of the petitioner getting eye sight as there is nerve damage and detachment of retina. The suggestion cannot a blind man can do something to earn, she answered that in the case of an ordinary blind man it is possible but in the case of the petitioner it is not possible as he is neurologically deficit." 3. The accident occurred on 1.6.2003. The injured was a contractor. He was an ITI certificate holder. Exts.A22 and 23 show that he was a successful building contractor. Exts.A29 and 30 also show that he was getting a good income. According to the M.A.C.A.No.738/2008 3 claimant, his income was Rs.15,000/- per month. In the absence of clear evidence, tribunal has taken only Rs.3,000/- as the monthly income. For calculation of compensation, one-fifth was deducted. We are of the opinion that the monthly income taken itself was very low. Unlike death case, in injured cases, personal expenses need not be deducted. A bed-ridden injured also needs food, dress etc. Since he is unable to go out, he will have continuous medical treatment and attention is also necessary. So, personal expenses will be more. Therefore, tribunal should not have deducted any amount for personal expenses from the low income fixed. The tribunal has taken 15 as the multiplier as he was 42 years old at the time of accident, taking guidance from the second schedule. If that be so, compensation payable for disability a d loss of earning power will be Rs.3000 x 12 x 15 = Rs.5,40,000/-. The tribunal has awarded only Rs.4,32,000/-. 4. Another contention taken by the insurance company is that the tribunal awarded Rs.2,70,000/- towards bystander's expenses is also on the higher side. Bystander's expenses was calculated for 15 years. The accident occurred in 2003. Award was passed in 2008. For seven years interest need not be granted as future expenses is to be incurred. But, we note that the tribunal has also noted that there will be inflation for engaging a bystander in M.A.C.A.No.738/2008 4 future and interest amount will cover the same. Apart from the above, even if only Rs.2,000/- is taken as expenses for a bystander, for 15 years, it will come to Rs.3,00,000/-. We have already seen that the tribunal has awarded only Rs.1,08,000/- less than that is payable for permanent disability and Rs.3,00,000/- towards bystander's expenses. It has come out in evidence that respondent/claimant is unable to do his daily routine and for each and everything a full-time bystander is necessary till his death. He was not awarded any amount for future medical expenses. We are of the opinion that the interest awarded on the total amount will cover all these expenses. 5. We heard the learned counsel for the claimant in detail. However, considering the totality of evidence, we restrict the award to Rs.10,00,000/- as claimed in the petition with interest and proportionate cost as awarded by the tribunal. The appeal is disposed of as above. J.B.Koshy Judge K. Hema Judge vaa M.A.C.A.No.738/2008 5 J.B. KOSHY AND K.HEMA ,JJ. ------------------------------------- M.A.C.A.No.738 of 2008 ------------------------------------- Judgment Dated:4th April, 2008