IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 MACA.No. 792 of 2003 ------------------------------------ OPMV.675/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER IN OP(MV): JOHN FRANCIS, S/O. FRANCIS, VAZHAPILLY HOUSE, ALOOR P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN OP(MV): 1. MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, FORT, TRIVANDRUM. 2. VARGHESE, S/O. DEVASSY, KOPPARAMBIL HOUSE, AIRANIKULAM, KAKULASSERRY VILLAGE. BY ADV. SHRI.JOHNSON P.JOHN, SC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.792 of 2003 --------------------------------- JUDGMENT Koshy, J. A qualified medical practitioner (holder of MBBS degree), at the age of 30, sustained injuries in a motor accident. He claimed a total compensation of Rupees five lakhs contending that the accident occurred due to the negligence of the second respondent, the driver of the vehicle owned by the first respondent. On the basis of the evidence adduced, the Tribunal found that the accident occurred solely due to the negligence of the second respondent, the driver of the vehicle owned by the first respondent, but awarded only an amount of Rs.1,20,400/-. The only dispute is regarding the quantum of compensation. 2. With regard to the injuries, Exhibit A5 is the wound certificate and Exhibit A6 is the discharge summary. After considering the evidence, MACA 792/03 2 the Tribunal found as follows: “Exhibits A5 and A6 show that the petitioner has sustained the following injuries: “1. Bleeding from left nostril. 2. Fracture maxilla and zygoma left. 3. Fracture left orbit and greater wing of splenoid. 4. Fracture patella innerpole with separating fracture fragment. 5. Cerebral concussions.” He was treated for the Vision loss. He was examined by the Ophthalmologist and on examination, it was found that the bed side visual acuity was CF 2 metres in both the eyes. The right eye was normal. But in the left eye, there was a lid tear at the lateral cathus 1 cm. in length, Chemosis of the conjunctive, papillary mydiasis and suspicion of globe rupture. The patient underwent lid tear suturing and exploration of the globe under general anesthesia on MACA 792/03 3 10.2.1996. Intra operatively the globe was found to be intact and lid tear suturing was done. On 14.2.1996, he underwent left orbital floor blow out fracture repair along with fixation of a fracture line involving the left zygomatico frontal junction. Post Operatively, there was extra ocular muscle movement restriction for which a course of systematic steroids was given. The muscle restriction gradually improved during the course in the hospital and last follow up was on 2.4.1996. On that day, his visual acuity of 6/6 in the right eye and 6/9 in the left eye. There was residual enophthalmos in the left eye with restriction of abduction traumatic endoplegia and cycloplegia fundus examination was normal. The department of plastic surgery issued Exhibit A8 discharge summary on 7.6.1996. In this Department on 14.2.1996 orbital floor explored through a subciliary incision. Inferior orbital margin found fractured with significant displacement. The MACA 792/03 4 fracture line extended to the orbital floor with herniation of orbital contents into the antrum. Inferior orbital margin stablished with a mini plate and orbital floor reconstructed with a bone graft from the iliac crest. Through a lateral eye brow incision the fracture line at the zygomatico frontal junction was exposed, reduced and fixed with inter osseous wire. In the Medical Trust Hospital the petitioner has incurred an expenses of Rs.13,664/- for the medical treatment evidenced by Exhibit A9 series. Exhibit A10 is a medical certificate issued on January 2002. It was certified that the visual acuity in the left eye is not normal and it may remain so for the rest of his life. An orthopedic Surgeon issued Exhibit A11 disability certificate to the petitioner assessing 10% disability to him. This was assessed mainly for the fracture to the right patella. For the fracture patella he underwent patellectomy. He was on POP cast and it was removed after 6 weeks and for the MACA 792/03 5 fracture, he has assessed 10% disability.” Again, the Tribunal found as follows: “PW1 has given a detailed narration regarding injuries, disabilities and the present difficulties he is experiencing as a Medical practitioner. His eye sight was partially lost which is not recoverable. There is facial dis figuration due to the multiple fractures to the facial bones. There is facial ascemetry. The movement of the eye was restricted and he had double vision.” 3. The appellant's case is that at the time of the accident, he was selected to the Diploma Course in Radio Therapy. But, according to the claimant, because of the accident he was prevented from joining the course. He has also stated that because of the visual problems, his practice is affected. MACA 792/03 6 It is also stated that because of the fracture of patella knee and resultant problems, he is unable to move freely. He further stated that the accident occurred at the age of 30, destroying all sorts of his future prospects. Because of the accident, he had psychological problems also. The Tribunal found that there was facial dis-figuration and eye sight was considerably affected. But, considering the visual disability, orthopedic problems and all other aspects, we are of the opinion that the Tribunal ought to have awarded compensation for 20% disability, instead of 10% disability. 4. Even though there was oral evidence to the effect that he was getting Rupees five thousand per month, no evidence was adduced regarding the actual income. No income certificate also was produced. If he was getting Rupees five thousand per month in the year 1996, he must have been paying income tax. Therefore, the Tribunal fixed the monthly income at Rupees three thousand per month. Being an MBBS MACA 792/03 7 doctor and considering the future prospects etc., we are of the opinion that the Tribunal ought to have taken at least Rupees four thousand as the monthly income. If that be so, the compensation payable will be Rs.1,63,200/- (4000 x 12 x 20/100 x 17). From that Rs.61,200/- has to be deducted. So, the balance will be Rs.1,02,000/-. 5. It is submitted that towards pain and sufferings, only Rupees ten thousand was awarded. Rupees ten thousand was awarded for dis-figuration and the compensation awarded under all other heads are very inadequate. But, we are not enhancing the compensation considering the total compensation awarded. The Tribunal found that the appellant was hospitalised and was under treatment for six months and awarded six months' income as compensation towards loss of earning power. Since we have increased the monthly income from Rupees three thousand to four thousand, Rupees one thousand more per month, he will be entitled to Rupees six MACA 792/03 8 thousand more. He was in the hospital as an inpatient for one month. Rupees one thousand was awarded towards by-standers expenses. We are granting Rupees two thousand more under that head. Therefore, the additional compensation payable will be Rs.1,10,000/-. The above amount of Rs.1,10,000/- should be deposited by the first respondent with 7.5% interest from the date of application till its deposit over and above the compensation decreed by the Tribunal. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is, thus, partly allowed. (J.B.Koshy, Judge) 12th August, 2008 (K.P.Balachandran, Judge) tkv