IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 MFA.No. 371 of 2001(D) ---------------------- OPMV.1417/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ----------- M.K.SHAJI,S/O.KRISHNAN, AGED 27 YEARS, MUCHOLACKAL HOUSE, KAKKODE KARA, PIRAVAM VILLAGE, MUVATTUPUZHA TALUK (DIED LRS IMPLEADED) ADDL.APPELLANTS: 2.V.S.KRISHNAN,S/O.KANDA, MUCHOLACKAL HOUSE, KAKKODE KARA, PIRAVAM VILLAGE, MUVATTUPUZHA TALUK. 3.RADHA,W/O.V.S.KRISHNAN, DO. 4.VIJAYAMMA,D/O.KRISHNAN, DO. 5.SIVAN,S/O.KRISHNAN, DO. (THE DEATH OF THE ORIGINAL APPELLANT IS RECORDED AND HIS LRS ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 VIDE ORDER DATED 22.3.2004 IN I.A.NO.877/04.) BY ADV. SRI.ABRAHAM VAKKANAL RESPONDENTS/RESPONDENTS: ------------- 1.K.PALANIAPPAN,12/1078,SOBHA TSM COMPLEX, PRIYADARSINI ROAD, PALAKKAD. 2.RAJAN,CHEELOTTIL HOUSE, MULLASSERY, CHALAKUDY, TRICHUR. 3.UNITED INDIA INSURANCE CO. LTD.,KURUPPAM ROAD, TRICHUR. MFA.371/01 4.BOBAN K.JACOB,S/O.LATE JACOB, KARITHADATHIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA. 5.THE NATIONAL INSURANCE CO. LTD., MARKET JUNCTION, THRIPPUNITHURA. R5 BY ADV. SRI.E.M.JOSEPH R3 BY ADV. SRI.M.S.PATTALI ADV. SRI.T.VINOD KUMAR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.371 OF 2001 () ----------------------------------- Dated this the 5th day of February, 2008 J U D G M E N T KOSHY,J. A lorry bearing registration No.KL-7-Q-657 coming from Coimbatore to Aluva was hit by a bus bearing registration No.KEH 2034 driven by the 2nd respondent came from the opposite direction and as a result of which lorry driver died and cleaner was severely injured. Cleaner filed an application for compensation of Rs.2 lakhs. Tribunal found that accident occurred due to the negligence of the driver of the bus. The bus was insured by the 3rd respondent Insurance company. Tribunal awarded only Rs.62,300/- as compensation with 12% interest. Out of the above amount, Rs.15,800/- was the medical expenses supported by bills. Only quantum of compensation was challenged in this appeal. 2. During the pendency of the appeal, claimant died and MFA.371/2001 2 his legal representatives were impleaded. At the time of accident he was aged only 27. He was a travelling in the lorry as cleaner. According to him, his monthly income was Rs.3,500/- and he also produced Ext.A14 certificate from the transport company. Tribunal has taken only Rs.1,500/- as the monthly income. We are of the opinion that tribunal ought have accepted Rs.2,500/- as the monthly income, since he was employed as a lorry cleaner. We are of the opinion that monthly income claimed by him should not have been rejected by the tribunal as only reasonable amount was claimed as the monthly income. With regard to the injuries, Ext.A6 is the wound certificate issued from the Medical College Hospital, Thrissur. Ext.A7 is the discharge certificate. The certificate shows that petitioner had black eye sight, nasal bleeding, Pneumocephalus. At the time of discharge, his condition was satisfactory. Ext.A9 C.T.Scan report was produced. The petitioner had comminuted fracture frontal bone of the left side with haematoma with frontal sinus. Extradural haematoma of maximum thickness 2 cm. in left frontal region. Posterior fossa shows normal cerebellar parenchyme and the fourth ventricle. MFA.371/2001 3 Ext.A10 is also a C.T.Scan report which shows that there was no significant change compared to the previous Scan report. Ext.A12 is the medical certificate issued on 31.10.2000 which shows that even on 31.10.2000, he was having complaints of head ache, loss of memory etc and he has post traumatic head ache and memory disturbances. The medical certificate shows that after the accident he has become unconscious. He regained consciousness after 48 hours. PW2 doctor also gave evidence regarding the medical treatment given on him. We note that Ext.A12 was given in the year 2000 within two years. He died at the age of 32. Even though it was argued that the death has relation to the accidental injuries, there is no clear proof that his death was the after effect of the accident. Perhaps it must accelerate the death. In any event, incident occurred at the age of 27. He remained as unmarried. Till his death he has memory loss and recurring head ache. He died within five years of the accident. The tribunal found that he was under treatment for six months and awarded Rs.9,000/- as loss of actual earning for six months taking Rs.1,500/- as the monthly income. Since we have increased his monthly income MFA.371/2001 4 at Rs.2,500/- he is entitled to an additional amount of Rs.6,000/- on this head. He was hospitalised for one week immediately after the accident. Only Rs.500/- was awarded for bystander expenses. He has subsequent medical treatment. Apart from the amount mentioned in the bill, there will be many expenses which are not covered by the bills. Therefore for bystander expenses and medical expenses together, we award Rs.4,000/- more. Tribunal did not calculate compensation for permanent disability and loss of earning power in the multiplier method but awarded Rs.10,000/-. Even after three years of the accident, he had recurring head ache. Taking all these facts, we are of the view that Rs.15,000/- more could have been awarded for permanent disability and loss of earning power. Since he died after five years of the accident and legal representatives were impleaded, we are not calculating compensation on a multiplier method especially in the absence of disability certificate assessing percentage of disability. Thus the additional amount he is entitled to is Rs.25,000/-. The above amount should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of MFA.371/2001 5 application till its deposit over and above the decreed amount by the tribunal. On deposit of the above amount, additional appellants 2 and 3, father and mother are allowed to withdraw the amount. With the above modifications in the award, this appeal is partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.371 OF 2001 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 5th February, 2008