IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 MACA.No.1841 of 2006 (A) ------------------------------- O.P.(MV).3528/1997 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM. .................... APPELLANT/CLAIMANT PETITIONER: ------------------------------------------- JOHNY P.C., S/O. CHACKOCHAN, KUNAHIL HOUSE, P.O. ERUMATHALA, CHOONDI, ALUVA. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENTS: RESPONDENTS: ------------------------------------- 1. V.K. ASHARAF, VADAKKEKUDY HOUSE, PONJASSERY P.O., PERUMBAVOOR. 2. THE NATIONAL INSURANCE COMPANY LTD., PERUMBAVOOR. BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A No.1841 of 2006 ------------------------------------------------ Dated this the 8th day of August, 2008 JUDGMENT J. B. Koshy, J The appellant/claimant met with a motor accident and sustained serious injuries on 12/07/97 while he was riding the motor cycle when his motor cycle was hit from behind by a mini lorry bearing registration No.KL-4/B- 7153. The Tribunal found that the accident occurred due to the negligence of the driver of the mini lorry and the mini lorry was covered by a valid insurance policy issued by the third respondent/Insurance Company at the time of accident. However, only an amount of Rs.1,75,400/- inclusive of medical expenses M. A. C. A No.1841 of 2006 -2- was awarded against a claim of Rs.3,56,000/-. The only dispute in this appeal is regarding the quantum of compensation and directions regarding payment of the same. Out of the compensation awarded, compensation awarded for medical and treatment expenses is Rs.80,000/-. The Tribunal found that Rs.21,000/- is due to the Ernakulam Medical Centre Hospital, Palarivattam where the petitioner was treated and directed the Insurance Company to compensate the amount only after payment of the same by the appellant. According to the appellant, because of the accidental injuries and treatment sustained, he is unable to pay any amount to the Hospital as he has become penniless and unless the amount is available, M. A. C. A No.1841 of 2006 -3- he cannot pay any amount. In fact, he issued a cheque to the Hospital for the amounts incurred and that was not encashed due to paucity of funds and a cheque case under Section 138 of the N.I. Act is pending. It is also further contended that compensation awarded is inadequate. 2. The appellant was aged 30 years at the time of accident. The Tribunal fixed 15 as the multiplier. According to the claimant, as per Second Schedule for a motor accident victim aged between 25 and 30, 18 is the multiplier and therefore, 18 should be taken as the multiplier. But, for an accident between 30 and 35 multiplier fixed is 17 under the Second Schedule. Hon. Supreme Court has held that in M. A. C. A No.1841 of 2006 -4- the absence of any exceptional circumstance, multiplier in the Second Schedule for assessing compensation should be adopted in 166 case also. [See A.P.S.R.T.C v. M.Pentaiah Chary (2007 AIR SCW 5689) and a three member bench decision of the Supreme Court in Smt.Supe Dei and others v. M/s National Insurance Company Ltd. and another (JT 2002 (Suppl.1) SC 451)]. Therefore, we are of the opinion that 17 should be taken as the multiplier. 3. With regard to the injuries are concerned, Ext.A4 Wound Certificate shows the following injuries:- “1. Periorbital oedema/echymosis (R) side. 2. Ragged laceration on the (R) side of forehead. 3. Abrasions on the nose, upper lip, both sides of face, both knees (R) leg. 4. Contusion on (R) sholder. 5. Abrasion/laceration (L) flank. 6. Extensive laceration on the posterior M. A. C. A No.1841 of 2006 -5- aspect of (L) leg. 7. Ragged contaminated laceration on the medial aspect of (R) ankle, (R) foot, with heel pad avulsion. 8. Dislocation of all tarso metatarsal joints of (R) foot. 9. Rupture of urinary bladder. 10. Open fracture (R) medial malleolus. 11. Fractures of both clavicles, 6th rib (L) side, (L) ilium and pubic ramii (R) side. X-ray chest - B/L Fracture clavicle, fracture 6th rib (L) side. X-ray pelvis - Fracture (L) ilium, pubic ramii (R) X-ray (R) ankle - Fracture medial malleolus.” He was treated as an inpatient for two months. After the inpatient treatment also he was able to walk only after months of treatment and physiotherapy. Medical Board assessed 17% disability as per Ext.A7. According to the petitioner, even though physical disability is 17%, he is unable to do his work and there is in effect 100% occupational disability. However, we are of the view that in the absence of any material M. A. C. A No.1841 of 2006 -6- we can assess compensation for only 17% disability as certified by the Medical Board and also as accepted by the Tribunal. 4. With regard to the income, he was a lorry driver by profession. He was maintaining a family. We are of the view that being a heavy vehicle driver, he will get at least Rs.100/- per day and he may get 25 days work in a month. If that be so, Rs.2,500/- can be fixed as the monthly income. If so, compensation payable for disability is Rs.86,700/- (Rs.2,500/- x 12 x 0.17 x 17). The Tribunal has already awarded an amount of Rs.45,900/-. The additional amount payable for permanent disability and loss of earning capacity is Rs.40,800/-. The Tribunal found M. A. C. A No.1841 of 2006 -7- that because of the injuries, he may not be able to do any work at all and during the period of treatment of four months, he will be entitled to Rs.6,000/-. According to the Tribunal, one year he was under treatment. The medical bills shows that he was under treatment for one year. Considering the nature of injuries, we are of the view that compensation for actual loss of earning will be payable at least for six months. If that be so, since we have increased the monthly income to Rs.2,500/-, compensation payable for actual loss of earnings during the period is Rs.15,000/-. After deducting Rs.6,000/- which is already granted by the Tribunal, additional amount payable will be Rs.9,000/-. M. A. C. A No.1841 of 2006 -8- 5. It is contended that compensation granted for pain and sufferings is very low and no compensation was awarded for disfigurement. We are of the opinion that no enhancement is needed on these aspects considering the compensation granted for permanent disability and loss of earning power. It is submitted that compensation granted towards reimbursement of medical and treatment expenses as Rs.80,000/- is inadequate. He has produced medical bills for Rs.1,06,224/-. The Tribunal found that out of the above, Rs.17,423.97/- is not shown in the final medical bill. Considering the observations made by the Tribunal, we are not enhancing the compensation granted for medical M. A. C. A No.1841 of 2006 -9- expenses. It is also submitted that future medical expenses were also not granted. But no material was adduced to show that he has spent any amount for future medical expenses after passing of the award or after completing the evidence before the Tribunal. Tribunal has granted only Rs.1,000/- for attendant's expense. He was an inpatient for two months in the hospital. We have also found that he was under treatment and unable to move about at least for six weeks. It is also submitted that several expenses were incurred by the appellant during the inpatient treatment which are not covered by the bills. Hence, we award Rs.12,000/- for bystanders expenses and incidental expenses during the period of M. A. C. A No.1841 of 2006 -10- treatment and the Tribunal has awarded only Rs.1,000/- on this count. Therefore, additional amount payable will be Rs.11,000/-. Even though it is contended that compensation granted under other heads are very meagre, considering the total compensation granted, we are not enhancing the same. It is the liability of the petitioner to pay bill for the hospital. It is not proper for the Tribunal for giving any direction in this regard. In fact, he has to face a criminal charge for not honouring the cheque and it is for the claimant to satisfy the hospital authorities by paying the amount with interest. Therefore, direction to pay the amount awarded only after satisfaction of the M. A. C. A No.1841 of 2006 -11- claim of Ernakulam Medical Centre is not sustained and is set aside. Therefore, the total amount payable inclusive of medical reimbursement will be Rs.2,36,200/-. 6. It is submitted that no amount is so far deposited. The above amount of Rs.2,36,200/- should be deposited by the third respondent/Insurance Company (second respondent in the appeal) with 7.5% interest from the date of application till its deposit. On deposit of the above amount, the appellant is allowed to withdraw the same. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-