IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 MFA.No. 1496 of 1998(B) ----------------------- OPMV.2055/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT: ----------- KUNIMMAL NANU, S/O.RAMAN, AGED 38 YEARS, KUNIMMAL HOUSE, P.O. PAVANNUR MOTTA, VIA. MAYYIL. BY ADV. SRI.A.K.SRINIVASAN SRI.A.S.BENOY RESPONDENTS: ------------- 1. K. SAVITHRI, D/O.KAMBRATH NARAYANAN, P.O. KUTTIYATTOR, VIA. MAYYIL. 2. VELLAKUDIYAN MADHU @ MADHUSOODANAN, S/O.KUNHIRAMAN, MAYYIL AMSOM, PERUMACHERRY DESOM. 3. ORIENTAL INSURANCE COMPANY LTD.. KANNUR. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K. HEMA, JJ. -------------------------------------------- M.F.A.No. 1496 of 1998 -------------------------------------------- Dated this the 7th day of January, 2008. JUDGMENT Koshy, J: Appellant-claimant met with an accident and suffered serious injuries. He claimed a compensation of Rs. 5 lakhs. The Tribunal found that the accident occurred solely due to the negligent driving of the lorry by 2nd respondent, insured by the 3rd respondent Insurance company. The Tribunal awarded only a total compensation of Rs.2,19,500/-. Only quantum of compensation is disputed in this appeal. 2. As far as injuries are concerned, Tribunal has considered the matter in detail after considering the evidence as follows: “14. Ext.A2 is the accident register-cum-wound certificate, prepared by the Medical Officer, Koyili Hospital, Kannur, which shows that petitioner was unable to move both his lower limbs and x-ray of the spine established anterior wedge compression fracture of T12 with anterior displacement of T11 and he was immediately referred to the higher centre for expert management. 15. Ext.A3, discharge card, issued from Kasturba Hospital, Manipal with Ext.A4, treatment certificate establishes that petitioner was treated there as an inpatient till discharged on 27.10.1993. When petitioner was examined on 28.9.93, the following injuries were recorded: Fracture and dislocation of T11 over T12, wedge compression fracture of T12 and traumatic paraplegia T12 level. [MFA.1496/98] 2 16. Ext.A5 is a certificate issued by Dr.M.S.Rao, Professor & Head of Urology Department of Kasturba Hospital, Manipal. It proves that the petitioner was treated in the Urology Unit of the hospital for post- traumatic paraplegia with neurologenic bladder with infected urachal cyst. It is recorded that petitioner is having the following disabilities:- (1) Paraplelgia, (2)Voiding dysfunction which needs long term follow up in view of possible damage to the kidneys resulting in renal failure. 17. Dr. Biju Jacob, the Assistant Professor of Orthopaedics, Kasturba Hospital, Manipal, who had treated the petitioner, was examined as PW2. The evidence of PW2 is self-explanatory. It establishes that the petitioner had fracture dislocation of T12 vertebra with complete praplegia and he was first treated in the Orthopaedic Department and thereafter at Urology Department. The evidence of PW2 would establish that at the time of discharge, there was no neurological recovery and some of the tests showed that there was a very poor progenosis. PW2 had examined the petitioner on 14.1.97 and it is deposed by that Doctor that at that time, PW1 had an absolute loss of sensation as well as of motor power below T12 level. His evidence would prove that both the limbs of PW1 are paralysed and the muscles of the lower limbs are in a state of increased tone and there was terminal 20 degree flexion restriction of both the knees and there was healed scar over the presacral region of size 2 x 1.5”. Ext.A11 is the certificate issued by PW2, after examining the petitioner on that day. PW2 deposed that the petitioner is having partial disability of 100% of both the lower limbs and he has a hyper reflexion neurologic bladder and incontinance of bowel function. PW2 has explained that the disability noted is lack of control over the bowel movement. The evidence of PW2 establishes that there is no chance of any improvement in the condition of the petitioner and without external help,it is impossible for him to move throughout his life. The evidence of PW2 with that of PW1 would therefore establish that consequent to the injuries sustained in [MFA.1496/98] 3 the incident, petitioner is now totally disabled and is not in a position to work or earn”. 3. He has paraplegia. The Tribunal has accepted 100% disability and loss of earning power. However, compensation was granted taking Rs.1000/- as the monthly income and 15 as the multiplier. The claimant was only 31 years old. The accident occurred in 1993. Even though this is not a claim under 163A and the accident occurred before the amended Act came into force, IInd schedule could be used as a guideline for fixing the multiplier as held by the Apex Court in Smt. Supe Dei and others v. M/s. National Insurance Company Ltd,. and another(JT 2002 (Suppl.1 SC 451) and A.P.S.R.T.C. v. M.Pentaiah Chari (2007 AIR SCW 5689). For a 31 year old man, multiplier fixed under the IInd schedule is 17. The claimant is still alive. He is suffering physical and mental torture due to the accident as bed-ridden patient eve now. In the above circumstances, 17 ought to have been adopted by the Tribunal in calculating compensation. The claimant was a granite worker. It has come out in evidence that minimum wages payable to granite worker was Rs.90 per day. According to the claimant, the minimum wage was increased to Rs.138.50 from 1996 and future prospects also to be considered. Being a granite worker, he will get at least 24 to 25 days work. Even ignoring the future prospects, his monthly income for the purpose of [MFA.1496/98] 4 calculating compensation is Rs.2000/-. If that be so, compensation for 100% disability will be Rs.4,08,000/- (Rs.2000x12x17). The Tribunal has awarded only Rs.2,19,500/-. Therefore, he will be entitled to an additional amount of Rs.1,89,500/- for loss of earning capacity and disability. It is contended that he is still a bed-ridden patient. The cost of medicines have increased. He has to continue medication, change catheter etc. However, considering the total amount of interest to be paid, we are of the view that no enhancement is necessary on other heads. The additional amount of Rs.1,88,500/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the Tribunal. On deposit of the amount, appellant-claimant is allowed to withdraw Rs.50,000/- and the balance amount should be deposited in a Nationalised Bank for a period of 5 years and he is entitled to half-yearly interest for his subsistence. Appeal is partly allowed. Sd/- J.B. KOSHY, JUDGE. Sd/- K. HEMA, JUDGE. [MFA.1496/98] 5 J.B. KOSHY & K. HEMA, JJ. -------------------------------------------- M.F.A.No. 1496 of 1998 -------------------------------------------- Dated this the 7th day of January, 2008. JUDGMENT