IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No.1150 of 2005 (D) ------------------------------- OPMV.571/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/CLAIMANT. ---------------------------- PANNIKKODAN VASUDEVAN, S/O. KRISHNAN, PHYSICALY AND MENTALLY DISABLED, REP. BY NEXT FRIEND, LATHAMANI, W/O. VASUDEVAN, PANNIKODAN HOUSE, POOVATHIPOYIL, VAZHIKKADAVU, MALAPPURAM DISTRICT. BY ADV. SRI.M.P.PRAKASH RESPONDENTS: RESPONDENTS. ------------------------------------ 1. C.SUBRAHMANIAN, S/O. KUNHAN, AKAMPADAM P.O., MALAPPURAM DISTRICT (DRIVER). 2. K.T.KUNHIMOHAMMED, S/O. BEERAN, KUNNATHODI HOUSE, KOTTAKAL, MALAPPURARM DISTRICT (OWNER). 3. UNITED INDIA INSURANCE CO. LTD., MANJERI. ADV. SRI.P.R.RAMACHANDRA MENON FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.1150 of 2005 ------------------------------------------------ Dated this the 28th day of October, 2008 JUDGMENT Koshy, J Appellant at the age of 37 sustained very serious injuries in a motor accident. He claimed a compensation of Rs.10,60,000/- contending that the accident occurred due to the rash and negligent driving of the first respondent/driver of the bus owned by the second respondent/owner and insured by the third respondent/Insurance Company. The Tribunal found that the allegation was correct and granted an amount of Rs.5,27,860/- and directed the third respondent/Insurance Company to deposit the same. Only quantum of compensation is disputed in this appeal. 2. The claimant was 37 years old. The Tribunal has fixed 16 as the multiplier taking M. A. C. A. No.1150 of 2005 -2- guidelines from the Second Schedule. It is contended that considering the increase in life expectancy, increase in interest rate, fluctuating economy etc. a higher multiplier should have been taken. Since the Tribunal has taken guidelines from the Second Schedule and fixed 16 as the multiplier, we are of the view that no grounds are made out to enhance the multiplier fixed by the Tribunal. The accident occurred on 06/05/1999. He was a driver by profession. According to the counsel for the appellant, the appellant was earning Rs.4,500/- per month. But as there is no clear evidence to assess his actual income, the Tribunal did not accept the same and fixed only Rs.2,000/- as the monthly income. Considering the fact that he was a driver by profession and considering the fact that he was maintaining a big family consisting of M. A. C. A. No.1150 of 2005 -3- five members including daughter aged 15, son aged 10, wife aged 35, father aged 67 and mother aged 64, we are of the opinion that at least Rs.3,000/- ought to have been fixed as the monthly income even though PW2/the employer of the appellant deposed that he was getting Rs.150/- per day. 3. The Medical Board certified 80% disability as follows:- “As per records he had RTA on 06/05/99 at Karakkode and sustained the following injuries. (1) Unconscious. L.W. 4 x 2 cm skull. (2) Compound fracture BB (L) forearm (L) (3) Fracture Condyle (L) mandible (4) Fracture (L) Zygoma. Fracture (L) maxilla CT Scan - Fracture temporal, maxilla. (L) and Mastoid (R), SAH, Multiple HGic contusion both temporal frontal lobes and brain skin. He was first seen at Al-Shifa Hospital, Perinthalmanna. He was treated therefore, Diffuse brain injury and Compound Fracture BB (L) forearm. He was on Ventilator Compound dated on 20/07/99. Conservatively management done from fracture forearm (L). Now on examination he is conscious. Not answering to questions. He is in persistent vegetative state with quadriplegia spastic - Hence a partial permanent disability of 80% (Eighty percent).” M. A. C. A. No.1150 of 2005 -4- 4. The above Medical Board Certificate was accepted by the Tribunal. The certificate shows that he is in persistent vegetative state with quadriplegia spastic. He is unable to move about. Therefore, even though physical disability is 80% his loss of earning capacity is 100%. He is not fit to do any job as he is physically and mentally disabled. Therefore, we are of the opinion that compensation should be granted for 100% loss of earning capacity. If that be so, compensation for disability will come to Rs.5,76,000/- (Rs.3,000/- x 12 x 16 x 100%) instead of Rs.3,07,200/-. Therefore, the additional compensation payable will be Rs.2,68,800/- (Rs.5,76,000 - Rs.3,07,200). It is contended that considering the nature of injuries, his loss of earning capacity, Rs.4,500/- awarded by the Tribunal as bystanders expenses is very low as he M. A. C. A. No.1150 of 2005 -5- requires an assistance of a person to do the normal activities and normal movements throughout his life. It is further contended that Rs.50,000/- awarded by the Tribunal for future medical expenses is not at all sufficient considering the present medical expenses. However, considering the total amount and interest on the same to be granted, we are not enhancing the compensation on those heads. The additional amount of Rs.2,68,800/- should be deposited by the third respondent/ Insurance Company with 7.5% interest over and above the amount decreed by the Tribunal. Out of the aforesaid amount, Rs.1 lakh is allowed to be withdrawn by the claimant and the balance amount should be deposited as Fixed Deposit in a nationalised bank so as to enable the appellant/petitioner to receive quarterly interest. M. A. C. A. No.1150 of 2005 -6- 5. This appeal is thus, allowed in part. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-