IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 MFA.No. 1329 of 2002(B) ----------------------- OPMV.171/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: (PETITIONER IN OP (MV)): ----------------------------------- T.V.SURESH KUMAR, S/O.VELAPPAN, THAYYIL HOUSE, ANNANAD P.O., CHALAKUDY. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: (RESPONDENTS IN OP (MV)): -------------------------------------- 1. M.I.BINOY, S/O.M.D.ITTERA, MATTATHIL HOUSE, ANNALLUR P.O., THRISSUR DISTRICT. 2. THE ORIENTAL INSURANCE CO., LTD., DIVISIONAL OFFICE, MAHESWARY BUILDING, THRISSUR. BY ADV. SRI.MATHEWS JACOB THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.1.2008, THE COURT ON 24/01/2008 DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.1329 of 2002 ----------------------------------------- Dated this the 24th day of January, 2008 JUDGMENT Koshy, J. Appellant-petitioner sustained serious injuries in a motor accident on 9.10.1997 due to the negligence of the first respondent driver of the vehicle, insured by the second respondent Insurance Company. He claimed an amount of Rs.3,00,000/- as compensation. The Tribunal awarded only Rs.76,000/- after holding that the accident occurred due to the negligence of the driver of the vehicle, insured by the second respondent Insurance Company. The only dispute is against the quantum of compensation in this appeal. Following the accident, he was taken to the St.James Hospital, Chalakudy and from there to the Elite Mission Hospital, Thrissur and then he was transferred for expert treatment to the Medical Trust Hospital, Ernakulam. He was inpatient in the Medical Trust Hospital, Ernakulam for 23 days. Medical records show the following injuries: “Fluid discharge from the nose, Bilateral anosmia, Fracture mandible, Post traumatic head ache and vertigo present. CSF leak due to bony defect.” M.F.A.1329/02 2 There was fracture to the skull bone. According to the appellant, there was complete loss of smell. Exhibit A3 is the discharge summary issued from the Medical Trust Hospital, Ernakulam. Exhibit A5 is the summary issued by Dr.Subba Rao, Neuro Surgeon of Medical Trust Hospital. Cerebral concussion bilateral black eye lacerated wound forehead upper lip, CSF Rhinorrea anosmia were noted in the summary. C.T.Scan revealed CSF leak through sinus left. The fracture maxilla leforte type III was also there. Inter maxillary fixation was done. Exhibit A7 scan report shown fracture of lateral wall shown fracture of lateral wall of left orbit. The Tribunal found as follows: “The available evidence proved that the petitioner has sustained fracture to the skull bone through the fracture site the cerebral fluid was leaking. The roof of orbit was fractured. He has cerebral concussion and black eye. He has anosmia, (loss of smell) and medical consultation was continued in 1998 and 1999.” 2. Exhibit A1 is the disability certificate issued by Dr.Mahadevan, Assistant Professor, Department of Neurosurgery, Medical College, Thrissur assessing disability at 12%. The doctor found that even in May, 2000 the patient has bilateral anosmia and has post traumatic head ache and vertigo. The petitioner has balancing problem and loss of smell. Though the doctor assessed M.F.A.1329/02 3 12% disability, the Tribunal assessed only 5% disability. We see that no valid grounds are stated for not accepting the medical certificate issued by expert doctor considering the injuries. The petitioner was 37 years old at the time of accident. He was maintaining a family. According to him, he was a spray painter getting Rs.150/- per day. We are of opinion that being a spray painter, he would get atleast Rs.100/- per day and Rs.2,500/- ought to have been taken as the monthly income. Taking second schedule as the guideline, 16 is the multiplier. If that be so, compensation payable will be: 2500 x 12 x 12 x 16 = 57600/-. 100 The Tribunal has awarded only Rs.14,400/-. So, the petitioner will be entitled to additional Rs.43,200/- for the disability and loss of earning power. The Tribunal found that he was unable to move for six months and the Tribunal awarded compensation of Rs.9,000/- taking Rs.1,500/- as the monthly income. Since we have fixed Rs.2,500/- as the monthly income, he is entitled to Rs.6,000/- more for actual loss of earning for the treatment period of six months. The appellant-petitioner contended that the compensation awarded for medical expenses, pain and suffering, future expenses etc. are very low. We are of opinion that compensation awarded under other M.F.A.1329/02 4 heads are just and reasonable and no enhancement is required. Therefore, the additional amount of Rs.49,200/- should be deposited by the second respondent Insurance Company with 7.5% interest from the date of application till the date of deposit, over and above the amount awarded by the Tribunal. On deposit of the amount, appellant is allowed to withdraw the same. The appeal is allowed, partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.1329/02 5 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.1329 of 2002 ------------------------------ JUDGMENT 24.1.2008