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 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No.1204 of 2006 (A) ------------------------------- OPMV.1264/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ------------------------------ NIKHIL.S., (MINOR), S/O.SUNIL KUMAR.N., REPRESENTED BY NEXT FRIEND AND FATHER SUNIL KUMAR.N., S/O.P.V.NARAYANAN, SEENA SADANAM, VANDIPERIYAR P.O., IDUKKI DISTRICT. BY ADV. SRI.M.J.THOMAS RESPONDENTS/RESPONDENTS: ------------------------------------ 1. K.C.THOMAS, S/O.CHANDA PILLAI, KARIKKINETH, THIRUVALLA. 2. N.PREMAKUMAR, S/O.NARAYANA PANICKER, KAVALACKAL HOUSE, CHERIKKAL BHAGOM, CHEMMANTHUKARA, VAIKOM. 3. NEW INDIA ASSURANCE CO.LTD., PATHANAMTHITTA. ADV. SRI.SATHISH NINAN FOR R1,R2 SRI.SANTHOSH MATHEW FOR R1,2 SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.1204 of 2006 ------------------------------------------------ Dated this the 28th day of October, 2008 JUDGMENT Koshy, J Appellant/claimant, a minor, at the age of 5 sustained head injury in a motor accident on 13/04/02. He with the help of his father filed an application for compensation claiming an amount of Rs.6,41,000/-. The total amount awarded by the Tribunal was only Rs.2,38,000/-. Out of which Rs.1,50,000/- was awarded towards reimbursement of medical expenses proved by actual bills. Only dispute is regarding quantum of compensation awarded in this case. 2. Appellant was on ventilation for about 50 days. The Tribunal considered the medical certificate at para 14 to 17 as follows:- M. A. C. A. No.1204 of 2006 -2- “Ext.A4(a) is the wound certificate issued from Indo American Hospital at Vaikom where petitioner was referred from Medical College Hospital, Kottayam. C.T. Scan revealed diffused cerebral swelling and subarachnoid hemorrhage - left temporal lobe appeared bit swollen. He underwent left temporal lobotomy under general anaesthesia. The minor's condition improved gradually. Ext.A5 is discharge card. He remained hospitalised from 13/04/02 to 03/06/02 for a period of about 50 days. He was managed with anticonvulsents and antioedema measures and elective ventilation. Post operatively an elective tracheostomy was done and gradually weaned off the ventilator. He had left hemiparesis which started improving. At the time of discharge he was advised to undergo physiotherapy and to continue medicines. He got re-admitted on 04/09/02 and remained hospitalised till 14/09/02 for a period of 10 days. He was given physiotherapy and his condition improved. Ext.A5(a) is also discharge record. He remained hospitalised again from 20/05/04 to 29/05/04 for a period of 9 days. He underwent physiotherapy and improved Gait pattern. Ext.A6 is the certificate issued from Indo American Hospital stating that petitioner continued treatment for the head injury sustained. Ext.A6(a) is treatment certificate issued from hospital at Vandiperiyar regarding physiotherapy given to minor petitioner. Ext.A7 is disability certificate. The Medical Board of the District Hospital, Kottayam certified 20% disability of temporary character as it has found the minor was recovering from hemophilia left following head injury.” 3. The total compensation awarded by the Tribunal are as follows:- M. A. C. A. No.1204 of 2006 -3- (in Rs.) Medical Expenses as per admissible bills 1,50,000 Para 21 of the award Extra nourishment & attendants charges 5,0000 Para 21 of the award Transport to hospital 4,000 Para 21 of the award Pain and suffering 25,000 Para 22 of the award Injuries 20,000 Para 24 of the award Disability 50,000 Para 25 of the award Loss of employment & amenities in life 12,000 Para 26 of the award Shortened expectation in life 12,000 Para 27 of the award Future medical expenses 5,000 Para 27 of the award TOTAL 2,83,000 4. But due to an accidental mistake, Tribunal totalled the same to Rs.2,38,000/- and awarded only the same (see Para 29 of the decretory portion). Therefore, the claimant is entitled to an additional amount of Rs.45,000/-. 5. The Tribunal after seeing Ext.A9 series regarding School Education Progress M. A. C. A. No.1204 of 2006 -4- Report of the appellant, also found that there occurred depression in the educational progress of the minor. Even though, the Medical Board certified 20% disability and Tribunal did not reject the same, compensation was not awarded on a multiplier method. But Rs.50,000/- was awarded for the disability occurred on account of hemophilia caused to the minor appellant/petitioner and Rs.20,000/- for the injuries. It is the contention of the counsel for the appellant/petitioner that the appellant itself is not normal. His entire future life is spoiled. The accident occurred at the age of 5. He is unable to compete with others because of hemophilia and it is a case where even though physical disability is 20%, compensation should be granted for 100% disability. The Tribunal has granted only Rs.5,000/- as compensation for extra- M. A. C. A. No.1204 of 2006 -5- nourishment and attendants charges. He was in the hospital for 70 days. He continued his treatment in his house. There will be many expenses which are not covered by bills during his inpatient treatment. He was on inpatient treatment for many spells. Outpatient treatment is also continuing. According to the claimant, even now he is continuing the treatment. Extra nourishment and bystander's assistance are necessary at his young age. He requires a bystander for six months. We are of the view that he ought to have been awarded Rs.20,000/- for bystander's expenses and extra nourishment and incidental expenses is to be paid. Therefore, he is entitled to an additional amount of Rs.15,000/- under this head. For loss of studies, no amount was granted even though at para 19 of the award, claimant's progress report and report of his M. A. C. A. No.1204 of 2006 -6- twin brother are observed to show that there is depression in the educational progress of the claimant. Hence, we award another Rs.5,000/- for loss of studies and thus, the appellant is entitled to Rs.20,000/- more. It is stated that the amount awarded for future medical expenses etc. are very meagre. But considering the total compensation awarded, we are not enhancing the compensation granted under other heads. Thus, the total additional amount of Rs.65,000/- (Rs.20,000 + 45,000 - occurred due to calculation mistake) should be deposited by the third respondent/Insurance Company with 9% interest from the date of application till its deposit over and above the amount decreed by the Tribunal. Out of the above, Rs.30,000/- should be paid to the father of the claimant as he has already spent huge amount for the medical treatment of M. A. C. A. No.1204 of 2006 -7- claimant. The balance amount should be deposited in a nationalised bank so as to enable the appellant to withdraw the same when he becomes major. 6. The appeal is thus, allowed in part. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-