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 22ND JULY 2008 / 31ST ASHADHA 1930 MFA.No. 487 of 2003 ----------------------------- O.P(M.V).NO.334/1994 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, WAYANAD, KALPETTA. .................... APPELLANT/ PETITIONER: -------------------------------------- ALI. K., S/O. CHEKKUTTY, KALATHIL HOUSE, PUNJAVAYAL, KAYAKUNNU, KUPPATHODU AMSOM DESOM, WAYANAD, REPRESENTED BY HIS POWER OF ATTORNEY K.SHAMEENA,W/O.KALATHIL ALI, KALATHIL HOUSE, PACHILAKADU P.O., KANIYAAMBETTA, VYTHIRI TALUK, WAYANAD. BY ADV. SRI.LLOYD JOSEPH VIVERA. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. BABY, S/O. JOSE, CHERUKATTOOR P.O., WAYANAD. 2. C.J.JOSE, S/O. JOHN, CHERUKATTOOR P.O., WAYANAD. 3. UNITED INDIA ASSURANCE COMPANY LTD., KALPETTA. R3 BY ADV. SRI. P.M.M.NAJEEB KHAN. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.487 OF 2003 ------------------------------------- Dated 22nd July, 2008 JUDGMENT Koshy,J . Appellant/claimant while travelling on a bicycle was hit by a Jeep bearing Reg.No.KL-12/1703 driven by the first respondent. The above jeep was owned by the second respondent and insured by the third respondent Insurance Company. The appellant claimed a compensation of Rs.1,50,000/= for the injuries sustained by him in the accident alleging negligence on the part of the driver of the jeep. Tribunal though found that the accident occurred due to the negligence of the first respondent, only Rs.13,500/= was awarded as total compensation and directed the Insurance Company to deposit the same. The only dispute raised in this appeal is regarding the quantum of compensation. The claimant was aged 21 years at the time of the accident. He has to suffer the after effects of the injuries throughout his life. Learned counsel for the appellant pointed out that the Hon'ble Supreme Court held that maximum multiplier of 18 should be taken for motor accident victims aged between 20 and 25 years. According to the claimant, he was aged 21 years. However, taking guidelines from the second schedule, we fix only 17 as the multiplier as Hon'ble Apex Court also pointed out that MFA.487/2003 2 except in exceptional circumstances, only the multiplier fixed in the second schedule should be followed in claims under section 166 of the Motor Vehicles Act also as it should be taken for guidance (A.P.S.R.T.C v. M. Pentaiah Chary (2007 AIR SCW 5689)). As far as the income of the claimant is concerned, we are of the opinion that he was aged only 21 years. According to him, he was working in a tea shop earning an income of Rs.1,200/= per month. Under the second schedule, notional income of a non-earning person including a child is fixed as Rs.15,000/= per annum (Rs.1,250/= per month). Even if his income is not proved, Rs.1,200/= ought to have been taken as the monthly income, but, Tribunal has taken only Rs.700/= as the monthly income. The next question is regarding the percentage of disability sustained by him. Ext.A1 is the wound certificate, Ext.A7 is the medical certificate and Ext.A8 is discharge card. The Tribunal found as follows: “A perusal of the same would show that in the accident, the petitioner has sustained the following injuries. “Fracture midshape left tibia. C/o severe head ache- concussion type of head injury”. The said documents would further go to show that the petitioner was treated in the Govt. Hospital, Kalpetta as inpatient for a period of twelve days. Then he was taken to the National Hospital, Calicut and he was treated there as inpatient for a period of two days.” MFA.487/2003 3 ExtA2 is the disability certificate which shows that there is 15% disability. He claimed a compensation of Rs.50,000/= for permanent disability and Rs.30,000/= for loss of earning power. The medical certificate was proved by examining PW2 doctor who issued the same. The Tribunal did not accept the same as the doctor issued the certificate only on the basis of clinical examination and only Rs.1,000/= was allowed for disability and loss of earning capacity. We are of the opinion that Tribunal went wrong in discarding the disability certificate and the disability suffered by the claimant. Considering the fracture and the injuries suffered, we are of the view that Tribunal ought to have calculated compensation at least for 5% disability. If that be so, compensation payable will be Rs.12,240/= (1,200 x 12x 5_x 17). From that, Rs.1,000/= awarded by the Tribunal 100 is deducted and, therefore, the additional compensation payable for disability and loss of earning power will be Rs.11,240/=. Tribunal has granted two months' income as compensation for loss of actual earnings. He had a fracture of tibia and at least three months would have been taken to move about and to remove the plaster cast. Therefore, he is entitled to three months' loss of pay at the rate of Rs.1,200/=, i.e., he is entitled to Rs.3,600/=. Rs.1,400/= was granted by the Tribunal for loss of actual earnings. Therefore, the additional compensation payable under this head will be Rs.2,200/=. It is submitted that compensation granted under all other heads are very minimal. He was taken from Kalpetta Govt. Hospital to National MFA.487/2003 4 Hospital, Calicut. For transportation only Rs.300/= was granted against a claim of Rs.2,000/=. For extra nourishment only Rs.200/= was granted. He produced medical bills for Rs.4,278/=. The Tribunal awarded Rs.4,300/= towards medical expenses considering the actual medical bills and Rs.200/= for bystander's expenses. It is contended that there may be many expenses during the inpatient treatment which are not covered by the bills. We are of the opinion that Rs.600/= more can be awarded for medical expenses and incidental expenses. Tribunal has allowed only Rs.6,000/= for pain and sufferings against a claim of Rs.50,000/=. There was fracture of tibia and head injury. We award Rs.1,000/= more for pain and sufferings. Therefore, the additional compensation payable will be Rs.15,040/= rounded to Rs.15,000/=. The above amount of Rs.15,000/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the decreed amount by the Tribunal. On deposit of the amount, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks