IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 MACA.No. 1797 of 2005() ----------------------- OPMV.996/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONER ---------------------------------- ABDUL KHADER HAJI, S/O.KUNHAHAMMED, AGED 62 YEARS, ALIKKAL HOUSE, KURUVATTOOR AMSOM, VALLAPUZHA PANCHAYATH, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENT(S): RESPONDENT 1 TO 3 -------------------------------- 1. SHIMJITH, S/O.SADASIVAN, AGED ABOUT 32, PAMBINKATTIL HOUSE, CHERUTHURUTHI POST, THRISSUR DISTRICT. 2. UNNIKRISHNAN, S/O.VELAPPAN, AGED ABOUT 39 YEARS, MARUTHOORVALAPPIL HOUSE, MOOKKUTHALA, MALAPPURAM DISTRICT. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, IIND FLOOR, JRJ COMPLEX, OTTAPALAM. ADV. SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.1797 of 2005 -------------------------------------- Dated this the 10th day of November, 2008. JUDGMENT Koshy, J. Appellant/claimant sustained serious injuries in a motor vehicle accident at the age of 60 on 16.9.2003. Tribunal found that accident occurred due to negligence of the second respondent, driver of the vehicle owned by the first respondent and insured by the third respondent. But against the claim of Rs.2 lakhs, Tribunal awarded only Rs.79,926, out of which Rs.43,426/- was the reimbursement on production of actual medical bills. This appeal is filed only for enhancing the amount awarded. 2. With regard to the injuries at paragraph 6 of the award Tribunal considered the matter as follows:- “Ext.A8 is the wound certificate copy of the petitioner herein. As per the said document, the clinical features noted are conscious, oriented, complaint of pain right side of chest, upper right of wrist, abrasion 3 x 2 cm sized over lateral aspect of left forearm, X-ray revealed fracture 7th, 8th, 9th and 10th ribs and X-ray of wrist shows collis fracture. The date of admission is 16-9-03 and the date of MACA No.1797/2005 2 discharge is on 29-9-03. Ext.A9 is a discharge summary issued from Valluvanad Hospital. As per the said document also, the date of admission is 16-9-03 and the date of discharge is on 29-9-03. In the col. of final diagnosis, it is noted as fracture ribs 7, 8, 9, 10 right side with flaice segment in 7th and 8th ribs, collies fracture right hand. Strapping was done for ribs fracture, POP cast was given for collies fracture supportive treatment given. Ext.A10 is a certificate issued by the Orthopaedic Surgeon attached to Valluvanad Hospital who certified that he examined him to assess the disability and found that there is terminal limitation of 10o dorsiflexion and 10o plantar flexion of right arm. He assessed the disability as 4%. Ext.A11 is a disability certificate issued from West Fort Hospital. As per the said document, he was admitted therein on 11-11-3 to 10-11-03. It is further noted as Burr hole evacuation of CND and they assessed the disability as 8% and the complaint is noted mild personality disturbance. Ext.A12 is a discharge card from West Fort Hospital. As per the said document, he was admitted on 11-11-03 and discharged on 19-11-3. In the col. of final diagnosis, right fronto parietal GSDH, history it is noted as old case of RTA on 16-9-03 present weakness of MACA No.1797/2005 3 left side limbs of one week duration. On examination it is seen patient conscious, oriented, left midline Hemiparasis. CT showed right central parietal with mass effect. On 11- 11-03 he underwent right frontal and parietal burr hole and evacuation of CSDH, post operative period he improved neurologically. Hemiparasis improved. Wound healed well. Review after 2 weeks. Petitioner produced medical bills worth Rs.43,426.66. Ext.A14 is a CT scan report. As per the said document, it is noted as large chronic subdural haematoma in the right frontal parietal and temporal areas; massive midline shift to the left with compressed right lateral ventricle. The CT scan is taken on 12-11-03.” But only a consolidated amount of Rs.7,000/- was granted for disability as well as loss of amenities. No amount was awarded for loss of earning power. It is true that he is aged 60 years at the time of accident. He is an agriculturist. It is contended that at the age of 60 if the injuries as mentioned in the medical certificate are sustained, he will not be able to do any work thereafter. It is further contended that apart from the medical bills produced he has to take medicines in future till his death. No amount was awarded with respect to future medical expenses. Appellant/claimant was unable to do any work for four to five months. In these circumstances, we are of the opinion the compensation should MACA No.1797/2005 4 be re-worked. Appellant was 60 years old. There is no evidence regarding income. Only notional income can be fixed. Petitioner was not a person of non- earning and he was maintaining a family from his income. Considering the fact that the accident occurred in the year 2003, we are of the opinion that at least Rs.2,500/- can be fixed as monthly income and considering the disability he has suffered, we are of the opinion that the disability can be taken as 10%. As per II schedule, if the age is 55-60 the multiplier is 8. Considering the age of appellant 8 is the multiplier. If that is so, compensation for disability and loss of earning power will be Rs.24,000/- [(2500 x 12 x10x 8)/100]. For loss of amenities, we grant Rs.1,000/-. So it will be Rs.25,000/-. Rs.7,000/- awarded by the Tribunal for loss of income due to disability and loss of amenities in future has to be deducted from Rs.25,000/-. So he will be entitled to Rs.18,000/- more for loss of disability, loss of earning power and loss of amenities. For actual loss of income for the period under treatment the Tribunal has awarded only Rs.6,000/-. Since we have assessed his monthly income as Rs.2,500/- and the certificate would show that for five months he is under treatment, loss of actual income for the period of treatment is Rs.12,500/-. Out of that Rs.6,000/- awarded by the Tribunal has to be deducted. The balance is Rs.6,500/- So additional compensation to which the appellant is entitled to get is Rs.24,500/-. It is contended that only the actual medical bills were reimbursed. In view of the long inpatient treatment, etc., we award Rs.500/- for incidental expenses. Thus, the additional compensation due to the appellant is Rs.25,000/-. The above sum of MACA No.1797/2005 5 Rs.25,000/- should be deposited by the third respondent Insurance Company with interest at the rate of 7.5% per annum from the date of application till the date of deposit. On deposit of additional compensation, appellant is entitled to withdraw the same. The appeal is party allowed as above. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks