IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 MFA.No. 785 of 2001(D) --------------------- OPMV.692/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT: PETITIONER: ----------- JOSEPH, AGED 49 YEARS, S/O.PACHAN, KOMBANAL, P.O.PALLIKUNNU, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.N.J.ANTONY RESPONDENTS: RESPONDENTS:- ------------- 1. P.J.BENNY, S/O. JOSEPH AGED 26/94, PAADATH VEEDU, PALLIMUKKU, KAMBLAKKAD, KANIAMBATTA AMSOM, WAYANAD DISTRICT (DRIVER OF THE JEEP KLM 2913, DL NO.1185/90-W) 2. M.B.MADHUSOODHANAN, AGED 23/94, S/O.BALACHANDRAN (OWNER OF THE JEEP NO.KLM 2913), MANJAPPILLILMIALIL VEEDU, EACHOM, ANCHKUNNU AMSOM. 3. UNITED INDIA INSURANCE CO., KALPETTA, LOCAL BRANCH OF INSURERS, TELLICHERY BRANCH,. POLICY NO.100802/31/01/533/XII/03 FROM 21-12-93 TO 20-12-94 (IMPLEADED AS PER THE ORDER IN IA 242/98 DT. 5-3-98. AMENDMENT CARRIED OUT AS PER THE ORDER IN IA 243/98 DT. 5-3-98. 4. M.FATHIMA, D/O. MAMI, MUCHIKAL HOUSE, FEROKE, KOZHIKODE (SUPPL. R4 IMPLEADED AS PER THE ORDER IN I.A2892/96 DT. 23-12-96. AMENDMENT CARRIED OUT AS PER THE ORDER IN I.A.2894/96 DT. 23-12-96. 5. SUPPL5. BEPIN GEORGE, MERCY HOUSE, KADAYAPPURAM, KOTTARAKKARA, KOLLAM DISTRICT (OWNER OF THE JEEP NO.KLM 2913) SUPPL.45 IMPLEADED AS PER THE ORDER IN I.A.242/98 DT. 5-3-98. AMENDMENT CARRIED OUT AS PER ORDER IN IA.243/98 DT. 5-3-98. NAMES OF RESPONDENTS 1, 4 AND 5 ARE DELETED AT THE RISK OF THE APPELLANT AS PER ORDER DATED 10-1-2008 IN I.A.NO.92/2008. BY ADV. SRI.A.R.GEORGE FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No.785 of 2001 ------------------------------------------------ Dated this the 10th day of January, 2008 JUDGMENT Koshy, J: Appellant-claimant sustained very serious injuries in a motor accident on 1.8.1994. He claimed a compensation of Rs.4 lakhs. The Tribunal awarded only an amount of Rs.20,400/- even though it was held that the accident occurred due to the negligence of the first respondent driver of the vehicle, insured by the 3rd respondent. Only quantum of compensation is disputed in this appeal. 2. According to the claimant, he was an agriculturist. The Tribunal has fixed Rs.700/- as monthly income. In the case of non- earning person, notional income fixed is Rs.1250/- as per second schedule. Here, he was an earning person aged 42 and was maintaining a family. We are of the opinion that the Tribunal ought to have fixed at least Rs.1800/- as the monthly income. As far as injuries are concerned, the documentary evidence is as follows: “To prove that in the accident, the petitioner has sustained injuries, petitioner has relied on Ext.A4 copy of the wound certificate, Exts.A5 and A6 medical prescriptions, Ext.A7 to A9 case records, Ext.A10 treatment certificate, Ext.A11 O.P. Ticket, Ext.A12 referal O.P. Ticket, Ext.A13 reference card and Ext.A14 C.T. scan report. Ext.A14 would [MFA.785/01] 2 reveal that there was no obvious bone defect in floor of anterior cranial fossa; No fluid in paranasal sinuses; Old fracture lateral wall of right orbit; right maxilla and right zygomaticomaxillary suture; Defect in upper part of nasal septum and absent middle turbinate on right side; Upper part of right nasolacrimal canal appears disrupted in lateral part; Normal inracranial contents. No CT evidence of bone defect in floor of anterior cranial fossa. Lateral wall of right nasolacrimal canal appears disrupted in upper part. Ext.A15 is the O.P. Ticket. Ext.A16 is the medical certificate. As per Ext.A16, it is seen certified as the petitioner requires curettage and succession or right maxilla to control infection and zeconstruction of right nasolacrimal duct at the earliest. A perusal of the aforesaid documents would show that in the accident, the petitioner has sustained injuries mentioned in the petition are as follows: “(1) Fracture of facial bones. (2) Multiple fracture nasal bone. (3) Head injury. (4) Bleeding from nose. (5) Bleeding from ears. (6) Displacement of both maxilla. (7) Ethmoid fracture. (8) Fracture around right elbow medially and laterally. (9) Lacerated wound right mandible. (10) Lacerated wound let elbow. (11) Abrasion left elbow. (12) Abrasion left knee. (13) Loss of right lateral incisor. (14) Partial loss of eye sight. (15) Partial loss of hearing capacity. (16) Partial loss of smelling capacity. (17) Edema of face and eyes. (18) Minor injuries and pain and many other injures.” the said documents would further go to show that the petitioner was treated in the Medical College Hospital as inpatient for a period of 32 days.” 3. The disability certificate was produced and marked as Ext.A18 assessing disability as 40%. The Tribunal did not accept the same merely because doctor was not examined. If the disability certificate produced by the appellant was not acceptable, he could have been examined by a medical board. That was not done. According to the appellant, his hearing capacity was impaired and he has also lost [MFA.785/01] 3 smelling power. His eye-sight was also affected. The Tribunal itself found that there was fracture to nasal bone, head injury, displacement of both maxilla etc. Considering the various medical certificates produced, we are of the opinion that compensation ought to have been granted at least for 25% disability and loss of earning power. He was 42 years at the time of accident. So, taking guidance from 2nd schedule, 15 is the apt multiplier. If that be so, compensation will be Rs. Rs.81,000/- (1800 x 12 x 25/100 x15). The Tribunal did not grant any compensation for disability and loss of earning power. Apart from the above, the Tribunal found that he was unable to move about for a period of six months and allowed Rs.4200/- as loss of actual earning. Since we fixed Rs.1800/- as the monthly income, for six months, he is entitled to Rs.6600/- more on that count. It is argued that medical expenses awarded is very low. Medical reimbursement was done only for actual expenses covered by bills amounts to Rs.5,596/- against a claim of Rs.50,000/-. Of course, there may be many more expenses which will not be covered by bills being incidental expenses and future expenses also. He was inpatient for 32 days in Medical College Hospital and thereafter as an outpatient for about 5 months. So, we allow Rs.4000/- on this count. It was argued that Medical College was 100 km. away from the place of accident and an amount of Rs.300/- allowed for transporation expenses and Rs.200/- allowed for [MFA.785/01] 4 extra-nourishment, and amount awarded under all other heads are very meagre. But considering the total amount, we are not increasing the compensation awarded under other heads. Hence, the total additional compensation will be Rs.91,600/-. The above amount of Rs.91,600/- should be deposited by the 3rd respondent with 7.5% interest from the date of application till its deposit over and above the amount decreed by the Tribunal. On deposit of the amount, appellant is allowed to withdraw the same. Appeal is partly allowed. Sd/- J.B. KOSHY, JUDGE. Sd/- K. HEMA, JUDGE. Krs. [MFA.785/01] 5 J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. No.785 of 2001 ------------------------------------------------ Dated this the 10th day of January, 2008 JUDGMENT