IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 MACA.No. 1651 of 2004() ----------------------- OPMV.368/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... : APPELLANT/IST RESPONDENT: ------------------------------------------ THE MANAGING DIRECTOR, K.S.R.T.C. THIRUVANANTHAPURAM. BY ADV. SRI.JAMES KOSHY.N., SC. KSRTC SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC SRI.K.PRABHAKARAN, SC, K.S.R.T.C. RESPONDENTS: PETITIONER AND 2ND RESPONDENT: ------------------------------------------- 1. BIJU V.G. S/O.GEORGE, VALLUTHUKARAN HOUSE, MELLOOR P.O. CHALAKKUDY, REP. BY NATURAL GUARDIAN GEORGE, VALLUTHUKARAN HOUSE, MELOOR P.O. CHALAKKUDY. 2. ANIL KUMAR, S/O.SIVARAMAN NAIR, PUTHUKULANGARA HOUSE, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.RAJEEVAN SRI.E.C.POULOSE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2008, ALONG WITH WPC NO. 30173 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B. KOSHY & K. HEMA, JJ. -------------------------------------------- M.A.C.A..No. 1651 of 2004 & W.P.(C) No. 30173 of 2004 -------------------------------------------- Dated this the 25th day of February, 2008. JUDGMENT Koshy, J: A 27 year old youngster suffered serious injuries in a motor accident caused due to the negligence of the driver of the vehicle owned by the Kerala State Road Transport Corporation ('K.S.R.T.C'. for short). The Tribunal found that the accident occurred due to the negligence of the driver of K.S.R.T.C. To come to the above conclusion the Tribunal relied on the evidence of three witnesses and also Ext.A5 charge sheet and other police records. No counter evidence was adduced. Therefore, the Tribunal fond that there was negligence on the part of the driver of the K.S.R.T.C. The Tribunal thereafter awarded Rs.8,79,000/- as compensation, as claimant sustained 100% disability. Despite the award, no amount was disbursed by the K.S.R.T.C. Hence, the claimant filed W.P.(C) No.30173 of MACA 1651/04 & Con. Case 2 2004 for payment of the amount, as he was completely bedridden and he needs continuous help. A learned single Judge of this Court after getting instructions by an interim order dated 8.11.2007 directed the K.S.R.T.C. to deposit the amount awarded within 3 months from that date. To avoid deposit of compensation, the K.S.R.T.C. filed appeal (M.A.C.A. No.1651 of 2004) with a petition to condone the delay of 262 days in filing the appeal. In order to avoid further delay, the petition for condoning the delay was allowed and both Writ Petition and appeal were posted today. It is submitted by counsel for the claimant that no amount was paid so far, even though, as a result of the accident, he was completely disabled. 2. We first consider the appeal filed by the K.S.R.T.C. As far as the findings of negligence is concerned, the oral evidence of the witnesses as well as police records show that driver of the vehicle owned by the K.S.R.T.C. was negligent. Even if there will be acquittal of the 2nd respondent driver due to lack of evidence, it will not affect MACA 1651/04 & Con. Case 3 the finding of the Tribunal as the eye witnesses have deposed regarding the accident and police records also support the same and only plausible findings from the Tribunal is that the 2nd respondent was guilty of negligence and only because of the negligence the accident occurred. The driver of the vehicle owned by K.S.R.T.C. ,against whom negligence was attributed, was not examined before the Tribunal and from evidence adduced before the Tribunal, the only conclusion reached is that the driver of the K.S.R.T.C bus was negligent and responsible for the accident. 3. With regard to quantum of compensation, according to the appellant, he was a medical representative earning Rs.6,000/- per month. Ext.A15 certificate issued by Proprietor, Medi Best Pharmaceuticals, shows that he was employed therein and his monthly income was Rs.6,000/- per month. He was a 27 year youngster. He also produced passport etc. to prove that he was trying to get foreign employment. But, the Tribunal took Rs.1,500/- as the MACA 1651/04 & Con. Case 4 monthly income, considering his age and the fact that the accident was in the year 1997, which, in our view, is not on the higher side. Taking guidance from the 2nd schedule, the Tribunal fixed 18 as the multiplier and we see no ground to interfere with the same. The apex Court in various cases held that 2nd schedule can be adopted as guideline for fixing compensation under Section 166 of the Act also. Even though it was contended by the claimant that in 163A there was no need for proving negligence of the driver of the offending vehicle, whereas in application under Section 166 this also has to be proved, hence compensation awarded under section 166 shall be higher. 4. With regard to the injuries, the Tribunal has in detail considered the evidence. The father of the injured-claimant was examined and he gave evidence that as a direct impact of the injury sustained due to accident petitioner became paralysed and his mental sense and movement of limps were lost. He is in a vegetable stage. Ext.A6 is the wound MACA 1651/04 & Con. Case 5 certificate. After considering the medical certificate and treatment certificate, the Tribunal found as follows: “It is proved by medical records that in the accident the petitioner sustained lacerated wound 4 x 1 cm on the occipital region, lacerated wound 3 x 1 cm. on the chin, contusion on the front of the neck, lacerated wound on the left forearm extending to the elbow 15 x 8 cm. Lacerated wound on the ankle right, bleeding from the mouth. The C.T. Scan of brain showed biparietal hemorrhagic contusion and right thalamic haemorrhagic contusion. Ext.A7 is a discharge summary issued from the Medical Trust Hospital which would indicate that the petitioner was admitted in the hospital on 3.11.1997 and was unconscious from the very moment of the accident and diffuse axonal injury and left elbow injury were found and was managed conservatively and he was given blood transfusion, antibiotics, anticonvulsants, ventilatory support along with tracheostomy and wound debridement and he was admitted in the ICU for the management of severe head injury with poly trauma in shock respiratory distress was managed in consultation with Orthopaedic Surgeon and the Cardiothoracis Surgeon. The patient showed gradually but steady recovery and he was gradually weaned off the ventilator. Attempts to wean him off the tracheostomy was not fruitful. Now the patient has spontaneous eye opening with decorticate posturing, on tracheostomy and he was discharged on 8.1.1998 at request. Ext.A18 is a discharge summary issued from Little Flower Hospital, Angamaly which would indicate that the petitioner was admitted in the hospital on 8.1.1998 and was discharged on 30.5.1998. Ext.A19 is another discharge certificate issued from Little MACA 1651/04 & Con. Case 6 Flower Hospital, which would indicate that the petitioner was again admitted in the hospital on 30.6.1998 and he was discharged on 25.11.1998. Ext.A8 is a Neuro rehabilitation Discharge summary issued from the National Institute of Mental Health and Neuro Sciences Banagalore, which would indicate that the petitioner was admitted in the Mental Health Institution on 26.11.1999 and he was referred to NIMHANS for rehabilitation and he had history of loss of consciousness following the bleeding from ear and the throat. He had hypertension and respiratory distress, for which tracheostomy was done and put on the ventilator for two months. He also developed seizures and was started o anticonvulsants. On examination, it is found that the petitioner had problem of lesions in the R- thalamic and biparietal haemorages, old contusion in the brainstem and L-thalamus diffuse cerebral, cerebellaneous brainstem atophy. He was on RC feeds and was not indicating bowel and bladder needs and he was not able to speak. Dyophagia evaluation was done and exercises to initiate vocalization were attempted. As he was not able to vocalise, ENT Surgeon's opinion was sought to see for any vocal cord palsy. He had decreased movement of the vocal cords bilateral on Idl. Which may required surgical intervention at a later stage, if necessary . He had fracture of the mandible and malunited tempero mandibular joint. He was advised scheduled voiding and was advised bowel programme and was taught to indicate the needs by ringing bell. He was given physiotherapy. He had gross spasticity in all the four limbs and was on mutiple anti spasticity drugs which was tailored and shifted to Tizandine 6mg/day. He had sudden episodes of stiffening of the arms and legs with MACA 1651/04 & Con. Case 7 unresponsiveness which looked life seizures. EEG was done which showed some seizure discharges and hence was started on cerbamazepine. He had contractures in both the feet which was corrected using POP cast passive stretching, and with the help of foot crop splints. He was seen by the occupational therapist and exercises for trunkal balance were taught. He was able to sit with support. His condition improved and was able to follow simple commands and was able to hold objects with his left hand. He was seen by a plastic surgeon and his opinion sought to correct his jaw deformity so that he would be able to chew. But since the patient's condition is not very much stable and is mainly of cosmetic value and as the procedure needs multiple sitting and the cooperation of the patient, it was decided to do it at a later date if the patient improves further. He developed pain and swelling in the right ankle., suggestive of heterotropic ossification which was confirmed with the help of a bone scan which showed increased uptake and he also had elevated ALP levels and was discharged on 28.3.2000 with advice to take physotherapy, medicines and to apply foot drop splints to prevent foot deformity monitor ALP and ESR every 2 weeks and to stop indomethacin once it reaches normal and review in rehabilitation OPD after six months. Ext.16 series are medical certificates issued from Sreedhari Ayurveda Geveshana Kendram, Koothattukulam which would indicate that on 29.1.2001 the petitioner was admitted in the hospital for treatment for Pakshakhadam and treated with Thalam, Plavilaswadam, Thaliswadam, Sirodharam, lepam, nasyam, Elakkizhi and Massage etc. for a period of 57 days and was discharged on 26.3.2001 and again he was admitted in the hospital on MACA 1651/04 & Con. Case 8 2.6.2001 and treated there for a period of 43 days and discharged on 14.7.2001 and thereafter he was admitted on 27.10.2001 and he was treated with Sirodhara, Pizhichil, Njavarakizhi, Thalam, Thapothichil, Nasyam, Vasthi, Massage, Upanaham etc., for a period of 55 days and was discharged on 20.12.2001 with advice to take medicine regularly and follow up treatment.” 5. On the basis of the abnormalities, the Tribunal found that he was unable to do any work and he was totally disabled and found as follows:- “..From the medical evidence and on personal appearance it is evident that the petitioner is completely lying in a com stage and he could not even move his limp without the held of others. From the available materials on record it is proved that the disability occurred which stands for ever. Therefore I fin that the disability sustained to the petitioner is 100% and that 100% disability which has affected his earning power by 100%..” 6. Considering the injuries, medical certificates and evidence in these cases, we fully agree with the Tribunal that he has practically become vegetable and he is entitled to compensation for 100% loss of earning capacity. Compensation for disability and loss of earning power was assessed as Rs.3,24,000/- as per the guidance in Second MACA 1651/04 & Con. Case 9 Schedule taking only Rs.1,500/- as his monthly income. For pain and suffering the Tribunal awarded only Rs.25,000/-, even though he was under treatment for a long period. Rs.9,000/- was granted as compensation for loss of actual earning during the initial period of six months. Further amounts were given for reimbursement of medical expenses and transportation expenses incurred by him. We are of the view that considering the injuries suffered and treatment he has undergone, the Tribunal has awarded only a very reasonable compensation. In fact considering the condition of the claimant and his continuous treatment needed, the Tribunal ought to have been justified in awarding more amount for pain and suffering and treatment expenses. Claimant did not file any application in any event. There is no reason to interfere with the compensation awarded by the Tribunal at the instance of owner of the offending vehicle. Therefore, we dismiss the M.A.C.A. with costs. 7. The accident occurred in 3-11-1997. A 27 year old youngster became completely vegetable and he needs MACA 1651/04 & Con. Case 10 continuous help and even now the K.S.R.T.C. has not deposit the amount. This is a pity state of affairs. Therefore, we direct the respondent-K.S.R.T.C. in W.P.(c)No.30173/2004 to deposit the amount within two months from from the date of receipt of copy of this judgment. 8. The writ petition is allowed, accordingly. J.B.KOSHY, JUDGE. K. HEMA, JUDGE. Krs. MACA 1651/04 & Con. Case 11 J.B. KOSHY & K. HEMA, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A..No. 1651 of 2004 & W.P.(C) No. 30173 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 25th February, 2008