IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 MACA.No.550 of 2003 -------------------------- OPMV.472/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SHIBI H., S/O. MUHAMMED HANEEFA, SHEEBA MANZIL, CHRUKAYALKKARA, KARICHARA, MURUKKUMPUZHA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENTS: RESPONDENTS ------------------------------------ 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM 2. RAJASEKHARAN S/O. CHAKRAPANI, OORAMKUDI- VEEDU, NEAR BHADRAKALI TEMPLE, MUKKALIVATTOM, VALIYAKADA, CHIRAYINKEEZHU P.O., THIRUVANANTHAPURAM DISTRICFT [PRESENTLY WORKING AS DRIVER, K.S.R.T.C. DEPOT, ATTINGAL]. ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.550 of 2003 ------------------------------------------------ Dated this the 13th day of October, 2008 JUDGMENT Koshy, J The appellant sustained injuries in a motor accident on 28/12/98. He claimed a total compensation of Rs.3 lakhs alleging that the accident occurred due to the negligence of the second respondent/driver of the vehicle owned by the first respondent/Corporation. The Tribunal awarded only Rs.1,35,596/- with interest. Only dispute is regarding the quantum of compensation. 2. At the time of the accident, claimant was 26 years old. The Tribunal fixed 18 as the multiplier. We see no ground to enhance the multiplier even though it is argued that considering the life expectancy higher multiplier ought to have been taken. It has M. A. C. A. No.550 of 2003 -2- been repeatedly held by the Hon. Supreme Court that the Second Schedule should be taken as a guideline in fixing the multiplier in 166 claim cases. Here taking guidelines from the Second Schedule, Tribunal fixed 18 as the multiplier. It needs no enhancement. The Tribunal fixed Rs.1,800/- as the monthly income. He was an ITI Diploma student at the time of the accident. In view of the accident he was not able to continue studies. It is contended that he discontinued ITI course as he could not do any manual work due to the accident. Subsequent to the accident he passed B.A degree. Considering the fact that he was a B.A. Degree holder and considering the future prospects and other qualifications, it is contended that at least Rs.3,000/- should be fixed as the monthly income. Since there is no evidence regarding the income, we are not M. A. C. A. No.550 of 2003 -3- changing the monthly income of Rs.1,800/- fixed by the Tribunal. 3. Then the question is what is the percentage of disability sustained by the appellant/petitioner. He was inpatient for 12 days. Skin traction was done. He was on Catheter for six months. The Tribunal considering the certificate found as follows:- “Ext.A5 wound certificate shows fracture on the floor of ascetabulam and A.K.skin traction given and referred to surgery and Eurology departments. Ext.A12 (a) copy of the referal O.P. card shows his I.P. treatment there from 28-12-98 to 8-1-99 for fracture of floor of ascetabulam repture of Urithra and blood transfusion done and Eurological consultation made and Catheter applied was changed on the review on 15-2-99. Ext.A-12(b) discharge card shows his I.P treatment there from 15-3-99 to 20-3-99 and on 18-3- 99 the Catheter was changed. Ext.A-12 referal O.P. card shows his I.P. treatment there from 15-6-99 to 7- 7-99 for stricture posterior urithra. Urithroplasty was done under spinal Anesthesia on 30-6-99 and he was reviewed thereafter on 2 occasions the last being on 24-7-99 on which day he was kept in the observation for one day. Ext.A-9 series are the prescriptions issued from G.G.Hospital on 13-8-99 and 8-9-99.” M. A. C. A. No.550 of 2003 -4- 4. With regard to the disability, Tribunal observed as follows:- “Ext.A16 is a disability certificate issued by a Lecturer (Ortho) M.C.H. Stating that this petitioner sustained fracture of pelvis involving left hip joint and rupture of urithra and on examination on 17-11-2000 he has (1) united fracture (Lt.) floor of acetabulam. (2) parital ankylosis of (Lt.) hip joint with motion limited to an arc from 1800 line to 900 flexion. External rotation limited to 200 from neutral. Abduction limited to 200 from neutral with resulting inability to sit cross legged. So the Doctor has assessed 7% disability as per the M/C brides scale for orthopaedic problem. That Doctor as PW2 deposed the contents of the certificate and the present ailments. Ext.A17 is a disability certificate issued by the Asst. Professor (Eurology) of M.C.H. stating the injuries sustained by the victim and that PW1 was subjected to an emergency S.P.C (Supra Pubic Cystostomy). He was treated with skin traction with 3 Kg weight and discharged on 8-1-99 and advised to attend the Eurology O.P. He was admitted in that unit on 15-3-99 then he underwent Endoscopic surgery for stricture urithra - Stricture bulbar Urethra - VIU - Visual Internal Urethratomy done on 18-3-99, but that surgery failed to produce satisfactory voiding. So he was again subjected to another major open surgery - End to End Urothroplasty on 30-6-99 dense stricture was present at the posterior urethra extending from bulbe membraneous juncture after that he is on periodic dialation every month and on examination on 9-12- 2000 the urinary system of PW1 was satisfactory, but may require periodic dialation and interruption of his routine activities. He has got erection of penis but has get Retrograde ejaculation of semen as evidenced by M. A. C. A. No.550 of 2003 -5- presence of Spermatozoa in the post Ejaculation Urine examination. Hence, he has 25% disability. That Doctor as PW3 would say that the disability noted in A17 is Eurological disability and that is a major disability especially in the case of a young man of 26. Ext.X1 to X4 are the medical case record issued from the M.C.H showing PWs admission on 3 occasions there and the treatments undergone including the surgical interventions, removal of stricture in the Urithra etc. These, records show that he has undergone Emergency Operation and I.P treatment for a very long time.” 5. According to the claimant, he lost power for performing sexual activities due to the accident. But medical certificate did not say the above difficulty. The Doctor was examined to prove Ext.A17 medical certificate certifying 25% permanent disability. According to the claimant, he went for studying B.A. Degree after the accident as he cannot do the technical work. He is unable to do any physical hard work. According to him, virtually he has lost 100% earning power. We are of the view that Tribunal ought to have M. A. C. A. No.550 of 2003 -6- awarded compensation for at least 25% disability as assessed by PW2/Doctor. If that be so, compensation payable will be Rs.97,200/- (1800 x 12 x 18 x 25/100). From that Rs.66,096/- already awarded by the Tribunal has to be deducted. Then the additional amount payable will be Rs.31,104/- rounded to Rs.31,100/-. It is contended that compensation awarded on other heads are very low, considering the long treatment and the pain suffered by the applicant. But, we are not enhancing the compensation already awarded by the Tribunal on other heads as amount awarded are reasonable. The additional amount of Rs.31,100/- shall be deposited by the first respondent/Corporation with 7.5% interest from the date of application till its deposit over and above the compensation awarded by the M. A. C. A. No.550 of 2003 -7- Tribunal. On deposit of the amount, the appellant is allowed to withdraw the same. 6. This appeal is thus, allowed in part. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-