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 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 MACA.No. 1728 of 2008 -------------------------------------- OPMV.2422/2001 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/APPLICANT: MOHAMMED SALI ALIAS SALI S/O.MOIDEEN, 28 YEARS CHALIL KUNNUMMEL, IYYAD PO., VIA.UNNIKKULAM, KOZHIKODE.. BY ADV. SRI.A.BALAGOPALAN SMT.T.LAKSHMI SRI.K.SANEESH KUMAR RESPONDENTS/RESPONDENTS: 1. RASHEED, S/O.ABU, 31 (DRIVER) ERAKKAL VEEDU, KADAVOOR AMSOM CHAMAL DESOM, THAMARASSERY, KOZHIKODE. 2. ABU, S/O.SAIDALAVI HAJEE (OWNER) 55 YEARS, ERAKKAL VEEDU, DO.DO. 3. UNITED INDIA INSURANCE COMPANY LTD. (INSURER), THAMARASSERRY. ADV. SRI.T.G.RAJENDRAN FOR R1 & 2 SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.1728 of 2008 --------------------------------- JUDGMENT Koshy, J. Appellant/claimant sustained serious injuries in a motor accident on 2.2.2001. He filed an application claiming an amount of Rupees Five lakhs as compensation. Thereafter, the claim was amended to Rupees Eight lakhs. Tribunal awarded only an amount of Rs.3,65,265/- with interest. The only dispute in this appeal is regarding the quantum of compensation. The Tribunal found that accident occurred due to the negligence of the first respondent, who was the driver of the offending mini lorry owned by the second respondent and insured by the third respondent. 2. Appellant produced Exhibit A4 disability certificate, assessing 50% disability. He was only aged 21 at the time of the accident. It is his case that he is unable to do any work. He became mentally incapable due to the accident. He had suffered fracture of femur and head injury. MACA 1728/08 2 Exhibit A4(a) is the certificate issued from the District Centre for Disability Rehabilitation for Disability. He was registered in the Centre on 11.5.2002. He is continuing the treatment. Tribunal, considering that the appellant was only 21 years old at the time of the accident, fixed 17 as the multiplier, taking guidelines from the second schedule. Rs.1,500/- was taken as the monthly income. Compensation was assessed for 50% permanent disability. Tribunal, after seeing the claimant, observed as follows: “The petitioner even though not examined as a witness was brought to the court. He could not even walk properly because of the head injury sustained by him. He appears to be mentally infirm also and he is shivering. From his appearance itself, it is evident that he had sustained some mental as well as physical infirmity because of the head injury sustained by him and he could even walk properly with the help of two persons. He was aged only 21 years at the time of the accident.” MACA 1728/08 3 The contention that he can walk only with the help of more than one person was accepted by the Tribunal. Therefore, as far as loss of earning power is concerned, there is complete loss. Considering the injuries sustained, we referred him to the Medical Board. We also wanted to see whether there is any improvement because of the long treatment undergone by the claimant. The Medical Board of the Medical College Hospital, Calicut forwarded the certificate directly to this Court assessing disability at 60%. It is stated that R7A sepuelac (LX) Ataxic Hemiparesis - moderate 5 cm, shortening (Rt) thigh segment and Internal rotation firmly linked on RB. We are of the view that with these difficulties, he will not be able to do any work at all. His earning power is completely lost. Even though we are not looking the future prospects, etc. of the appellant, he has lost his earning capacity fully. In fact, he became a burden. He needs assistance of at least two persons. Tribunal has granted Rs.1,53,000/- MACA 1728/08 4 for disability and loss of earning power, taking 50% as permanent disability and Rs.1,500/- as monthly income. We are of the view that Rs.1,500/- taken by the Tribunal is very low. Since we are of the opinion that his earning capacity is lost completely, compensation has to be granted for 100% loss of earning capacity. Therefore, he will get Rs.1,53,000/- more as additional compensation over and above the compensation awarded by the Tribunal. It is submitted that the tribunal has awarded only Rs.10,000/- towards bystanders expenses. After finding that he requires the help of more than one person throughout his life the amount granted on that count is very low. For bystanders expenses, it is submitted that, at least Rs.1,500/- per month will have to be spent and that has to be continued till his life time. It is also submitted that he is continuing the treatment in the Rehabilitation Centre. No amount was awarded for future treatment, etc. Even though we are not granting compensation for the entire bystanders expenses and future MACA 1728/08 5 treatment, etc. as claimed, we award Rs.20,000/- more towards bystanders expenses and expenses in the Rehabilitation Centre. Therefore, the additional compensation payable will be Rs.1,73,000/-. The above amount of Rs.1,73,000/- should be deposited by the third respondent Insurance Company with 7.5% interest per annum from the date of application till its deposit. On deposit of the amount, appellant is allowed to withdraw Rs.70,000/-. Balance amount should be deposited in a Nationalised Bank in Fixed Deposit for ten years and the claimant may be allowed to withdraw interest at quarterly rests. Appeal is allowed in part. (J.B.Koshy, Judge) 4th November, 2008 (K.P.Balachandran, Judge) tkv