IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 MFA.No. 1088 of 2000(B) ---------------------------------- OPMV.1459/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT: PETITIONER ------------------- POONKUNJU HAMZAKUTTY, S/O. POOKUNJU, AGED 29 YEARS, TOTAL DISABLED REP.BY GUARDIAN FATHER POOKUNJU, SON OF KOYAKUTTY, AGED 59 YEARS, KARUNGATTUSSERIYIL, KOYAKUTTY, AGED 59 YEARS, KURUNGATTUSSERIYIL, NEAR SHAHIDAR MASJID, KAYAMKULAM, P.O., PAYAMKULAM ALAPPUZHA, DISTRICT BY ADV. DR.K.P.KYLASANATHA PILLAY SRI.P.SREEKUMAR RESPONDENTS: RESPONDENTS ----------------------- 1. Y.ABDUL RASHEED, S/O. YUSUF, VALAKKOTTU THARAYIL, KANNAMPALLY BHAGAM, P.O. KAYAMKULAM. DRIVER OF CAR KL-8/D -4293, DL NO.1352/92, BADGE NO.456/92. 2. C..GANGADHARAN, CHAMAPARAMBIL HOUSE, PALAPPILLY P.O. KOOVAKKATTUKUNNU, VIA CHELAKKUDI. OWNER OF CAR KL-8/D/4293. 3. M/S.UNITED INDIA INSURANCE CO. LTD. SUNITHA BUILDING, 2ND FLOOR, D.E. ROAD, R.S.PURAM COIMBATORE, POLICY NO.170204/372/31/50/4348/94, WITH EFFECT FROM 16.5.94 TO 16.5.95. BY ADV. SRI.P.SANKARANKUTTY NAIR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & K.Hema, JJ. -------------------------------------- M.F.A. No.1088 of 2000 --------------------------------------- Dated this the 26th day of February, 2008 Judgment Koshy, J. Appellant in this case sustained very serious injuries in an accident occurred on 27.5.1994. The tribunal found that while the appellant was travelling in a taxi car, the car hit on a stone wall and capsized because of the negligence of the driver of the vehicle insured by the third respondent insurance company. Against a claim of Rs.Ten lakhs, tribunal awarded only Rs.2,70,000/- out of which Rs.60,000/- was for medical expenses. It is the contention of the claimant that the compensation awarded is very inadequate. Only quantum of compensation is disputed in the appeal. Claimant was aged 25 years at the time of accident. Tribunal fixed 17 as the multiplier. It is contended that as per the second schedule 18 is the multiplier. But, second schedule need be taken only as a guidance. We see no ground to change the multiplier fixed by the tribunal. According to the claimant, he was getting Rs.100/- per day. He was trading in banana. But, tribunal found that it was not proved. No data was produced or no evidence was adduced. Rs.1,000/- was M.F.A.No. 1088/2000 2 taken as the monthly income. He was aged 25 years. Under the second schedule, annual income is fixed as Rs.15,000/- for a non- earning person and for even a child. According to the appellant, he was travelling for the business. In these circumstances, we are of the view that at least Rs.18,000/- can be fixed as the annual income (Rs.1,500/- per month). 2. Now, we will consider the injuries sustained by the appellant. He was treated as an inpatient in the Medical College Hospital till 4.6.1994. Thereafter, he was treated in various hospitals. He was suffering from paraplegia. Ext.A2 is the wound certificate issued from the Medical College Hospital which shows that there was evidence of cervical spine injury and also quadriplegia. He was discharged with advice to have immobilisation of cervical spine with cervical collar. Catheterisation was done on 4.6.1994. Thereafter, he was treated in Pushpagiri Hospital, Thiruvalla and G.E.M.S. Hospital, Mavelikkara. He was taken to Ganga Hospital, Coimbatore for expert treatment. It was noted in Ext.A6 discharge summary issued from Ganga Hospital, Coimbatore that there was fracture subluxation of C5 vertebra with quadri- paresis. The M.R.I. scan report shows that there was cystic process in the spinal cord. Ext.A13 is the certificate issued by the doctor M.F.A.No. 1088/2000 3 attached to Neuro Surgery, Medical College Hospital, Alappuzha. It is certified that there was no significant improvement in the neurological condition of the appellant and he was bed ridden with total paralysis of both lower limbs. Exts.A14 to A16 certificates also show that spinal cord is seriously affected and appellant is unable to walk or sit. The tribunal, after considering the evidence, found as follows: "The fact that the petitioner is practically bedridden could not be controverted by the respondents. It is also borne out from the records that periodical catheterisation has to be done. It cannot also be disputed that for attending the ordinary pursuits, he required the help of one person." Ext.C1 disability certificate issued by T.D. Medical College Hospital shows that there is 80% disability. It also shows that appellant needs continuous catheterisation. The tribunal awarded compensation for 80% disability. His both legs were completely paralised. He is unable to walk or sit properly. Because of the use of catheter, movement was not possible. He is like a vegetable. Even though 80% disability was certified, tribunal himself has found that he is completely bedridden. In these circumstances, even though physical disability is 80%, he is entitled to compensation for 100% loss of earning capacity. If that be so, compensation payable M.F.A.No. 1088/2000 4 for loss of disability and for loss of earning capacity will be Rs.1500 x 12 x 17 x 100 = Rs.3,06,000/-. Tribunal has awarded only 100 Rs.1,63,200/-. Therefore, he will be entitled to get Rs.1,42,800/- under this head. It is contended that after holding that he needs a bystander throughout his life, only Rs.10,000/- was awarded for bystander's expenses. Rs.15,000/- was awarded towards pain and sufferings. Tribunal has granted Rs.10,000/- for discomfort and inconvenience. He was bedridden and he needs continuous catheterisation. No amount was awarded for future medical expenses. Changing of catheter also requires expenditure. But, considering the interest granted on the amount, we are not awarding for future medical expenses and for bystander's expenses separately. We are of the opinion that claimant is entitled to only an amount of Rs.1,42,800/- over and above the amount decreed by the tribunal. The above amount of Rs.1,42,800/- should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit. On deposit of the amount, appellant is entitled to withdraw Rs.50,000/- and M.F.A.No. 1088/2000 5 balance should be deposited in a nationalised bank in fixed deposit for ten years enabling the appellant to withdraw interest quarterly. J.B.Koshy Judge K. Hema Judge vaa M.F.A.No. 1088/2000 6 J.B. KOSHY AND K.HEMA ,JJ. ------------------------------------- M.F.A. No. 1088 of 2000 ------------------------------------- Judgment Dated:26th February, 2008