IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 MFA.No. 1455 of 2001(B) ----------------------- OPMV.204/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT: 3RD RESPONDENT:- ----------- UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, C.W.C. BUILDING, LMS COMPOUND, PALAYAM, TRIVANDRUM, representation. BY ITS DY. MANAGER, MTPC OFFICE, VETTUKATTIL BUILDINGS, M.G.ROAD, ERNAKULAM. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENTS: ------------- 1. DR. MANI O.K., S/O.KOLAVAN P., RESIDING AT MEN'S P.S.HOSTEL MEDICAL COLLEGE, THIRUVANANTHAPURAM AND PERMANENTLY RESIDING AT OORKULAM HOUSE, PUTHIYANKAM P.O., PALAKKAD. 2. EUGINE L. PERIERA, S/O. LAWRENCE PEREIRA, 1/632, ANSWIL, MURUKUMPUZHA, THIRUVANANTHAPURAM. 3. VINOD, S/O.DHANUNJAYAN, VINOMAL, TC 1/945, KUMARAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.RADHAKRISHNAN FOR R1 SRI.SAJEEV KUMAR K.GOPAL SRI.BINOY VASUDEVAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2008, ALONG WITH MFA NO. 1 243 OF 2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P. No. 4579/2002 in M.F.A. No. 1455/2001 Dismissed. Sd/-J.B. Koshy, Judge. 21st January,2008 Sd/-K. Hema, Judge. mn. J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. Nos.1455 of 2001 & 243 of 2002 ------------------------------------------------ Dated this the 21st day of January, 2008 JUDGMENT Koshy, J: Both Insurance Company and claimant challenged the award in O.P.(MV)No.204 of 1998 on the file of the Motor Accidents Claims Tribunal, Thiruvananthauram. According to the claimant, compensation awarded was very low. The Insurance Company challenges the award contending that the amount awarded was on the higher side. But, the Insurance Company did not get permission to contest the case on merit under Section 170 of the Act. Therefore, prima facie, the appeal filed by the Insurance Company is not maintainable. However, we have to go through the quantum of compensation awarded by the Tribunal as the claimant also challenges the award. 2. Ext.A8 is the wound certificate. He was admitted in the Medical College Hospital, Thiruvananthauram on 3.8.1996 and [MFAs.1455/01 & 243/02] 2 discharged on 24.8.1996. He was in the ICU for 7 days. He nearly escaped despite serious head injuries. He has disfiguration in the face. In view of injuries to teeth he lost sensation of 8 upper teeth. Thereafter he was also referred to the Medical College Hospital several times. Ext. A17 is the C.T.scan report which shows the following injuries: “Hypodense areas noted in left frontal lobe Suggestive of encephalomalacia due to oldhaeorragic contusion. No widening of adjacent cortical sulci and frontal horn present. Rest of train parenchyma appear normal. No evidence of focal lesions. No mess effect. Fractures noted in the frontal bone with depression of the roof with collapse of he frontal sinuses the fracture line extends upwards to left side. The roof of the right orbit is displaced inferiorly. Both lateral walls of orbit are fractured with minimal displacement of fragments. There is septal deviation of right wide with mucosal thickening and turbinate hypertrophy. Inflammatory exudes noted in the left maxillary sinus. Rest of paranasal sinuses and mastoid air cells are clear. Minimal proptosis on left side present. No evidence of bony fragments or foreign bodies in the orbits.” Ext.A18 shows that he was treated for three months for head injury. He was treated for post traumatic epilepsy in the Department of Neurology. Disability certificate issued from the Neuro Surgeon clearly shows his neuro disability is 61%. Ext.A9 to A11 shows that he was referred to Opthalmic Hospital. “There was displacement of both eye alls laterally and upward leading to both deformity and disfiguration of [MFAs.1455/01 & 243/02] 3 face and there was double vision due to pressure effect which arose due to the fracture of frontal bone over the eyes. Deep injuries were caused to the teeth and there was loss of sensation of upper eight teeth in front and loss of tough and pain sensation over upper lip. Injuries were caused to the nose also and there was fracture to the nasal bone in addition to various other injuries. The appellant is suffering from Anosmia and the same is almost permanent. So he cannot identify any sort of smell. The department of Opthalmology, Medical College, Trivandrum has issued a disability certificate to the appellant stating that he has a permanent disability of 20% due to Diplopia ( double vision)”. 3. It is the contention of the claimant that at least compensation should have been based on 60% disability as he is unable to discharge the functions of a doctor satisfactorily. But he obtained the M.D. Degree after the accident. He has to carry on the disability and consequential after-effects till his death. The Tribunal, after considering the various medical certificates, fixed 30% disability. We see no ground to interfere in the same. The Tribunal also noticed that he was a Post-Graduate Student of Medicine at the time of accident. He passed M.B.B.S. The Tribunal further noticed that after the accident, he started practice. An amount of Rs.7500/- was fixed as the monthly income. Considering the fact that he was having M.B.B.S. Degree and studying for Post-Graduate course, Rs.7500/- fixed by the Tribunal cannot be said to be excessive. He was aged 28 at the time of accident and taking guidance from 2nd [MFAs.1455/01 & 243/02] 4 schedule, 18 was the multiplier to be adopted. Total compensation was calculated at Rs.5, 55,500/- against a claim of Rs.20 lakhs. The award was passed 7.9.2000. We are of the opinion that just and reasonable compensation was awarded by the Tribunal. However, interest was granted at 12% per annum. We are of the opinion that interest can be granted only at 9% per annum from the date of application till its deposit. Considering the fact that he is capable of handling himself, he is allowed to withdraw the amount on deposit of the amount by the third respondent Insurance company. Both appeals are disposed of. Sd/- J.B. KOSHY, JUDGE. Sd/- K. HEMA, JUDGE. Krs. [MFAs.1455/01 & 243/02] 5 J.B. KOSHY & K. HEMA, JJ. ------------------------------------------------ M.F.A. Nos.1455 of 2001 & 243 of 2002 ------------------------------------------------ Dated this the 21th day of January, 2008 JUDGMENT