IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 MFA.No. 1283 of 2002() ---------------------- OPMV.39/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT: PETITIONER: ---------------------- K. SAKARIYA, AGED 24 YEARS, S/O. MUHAMMED KUNHI, KOMMACHI HOUSE, NARIKKODE, P.O. KOTTILA (REPRESENTED BY HIS PWER OF ATTORNEY HOLDER AND MOTHER SMT.KOMMACHI AYISHA, W/O.MANDOOR MUHAMMED KUNHI, NARIKKODE, P.O.KOTTILA, VIA-EZHOME, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: RESPONDENTS: ------------------------- 1. R. ANIL KUMAR, S/O. O.A. RAJAN, ORAYATH HOUSE, EROOR WEST, P.O. TRIPUNITHURA. 2. AJI. P. THOMAS, JOHN, S/O. P.T. JOHN, PARAKKAL HOUSE, THIRUVANKULAM, ERNAKULAM DISTRICT. (DELETED) 3. NATIONAL INSURANCE CO.LTD., P.B. NO.149, MATTANCHERRY, COCHIN. (DELETED) 4. M.T.P. ABDULLA, S/O. MAMMOO, MARAKATHU THEKKE PEEDIKAYIL HOUSE, P.O. CHERUPUZHA, TALIPARAMBA TALUK. 5. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE III, BRIDGE ROAD, BELMATTA, MANGALORE. THE NAMES OF RESPONDENTS 2 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 11.12.2007 IN I.A.2875/2007. BY ADV. SRI.MILLU DANDAPANI FOR R4 SRI.G.GIREESH SRI.RAJESH THOMAS FOR R5 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. ------------------------------- M.F.A.NO.1283 OF 2002 (A) ----------------------------------- Dated this the 18th day of February, 2008 J U D G M E N T KOSHY,J. Appellant at the age of 18 suffered serious injuries in a motor accident on 5.6.1995 by which he sustained fracture of Odentoid with atlanto-axial unstability. He was unable to hold his head upright. He was taken to Kozhikode Medical College Hospital, where he was treated from 5.6.1995 to 29.6.1995 as inpatient. He was taken to Manipal Kasturba Medical College Hospital where he underwent inpatient treatment for 43 days. Again he was admitted on the same hospital for five days. There, he was under inpatient treatment for 73 days. He claimed a compensation of Rs.2,50,000/-. But tribunal has awarded only Rs.1,16,980/-. Only quantum of compensation is disputed in this appeal as it was found that accident occurred due to the negligence of the driver of the vehicle insured by the 5th respondent Insurance company. MFA.1283/02 2 2. Tribunal found that for 18 months he was under treatment. According to the claimants, he was earning Rs.150/- per day. He was only 19 years old. No evidence was adduced to show that he was earning at the time of accident. Accident occurred in 1994. In the absence of evidence, we are of the opinion that only notional income as prescribed under the 2nd Schedule is taken. Here tribunal has taken the monthly income as per the 2nd Schedule, and hence, no interference is needed. Tribunal has taken 18 months wages as the actual loss of income amounting to Rs.22,500/-. Tribunal also admitted that his cervical spine was affected. Medical Board certified that there is 40% disability. Certificate was assessed only after two years of the accident. There was no need at all for disbelieving the certificate. Considering the wound certificate, medical certificate produced from various hospitals, nature of the treatment etc. 40% disability certified by the Board ought not have been interfered. Medical certificates were marked with consent. Merely because of the non examination of the Doctor, Medical Board certificate cannot be discarded. If that MFA.1283/02 3 be so, compensation payable for 40% disability will be Rs.1250 x 12 x 40/100 x 16 = Rs.96,000/- (16 is the multiplier fixed for persons between the age group of 15 to 20 years under the 2nd Schedule). Tribunal did not calculate compensation on multiplier basis but only awarded Rs.30,000/-. Therefore, he will be entitled to another Rs.66,000/- on this ground. The medical bills were produced for Rs.22,389/- and tribunal has awarded 22,400/- towards transportation charges and treatment expenses. He was taken from the place of accident to the Kozhikode Medical College Hospital. Thereafter he was taken to the Kasturba Hospital, Manipal for expert treatment. Thereafter he continued treatment as outpatient. Several expenses incurred were not inflicted by bills. Therefore, we award Rs.10,000/- more for medical, transportation and incidental expenses. Tribunal has awarded just and reasonable compensation under other heads. Hence the additional compensation comes to Rs.76,000/-. The above amount of Rs.76,000/- should be deposited by the 5th respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed MFA.1283/02 4 amount by the tribunal. On deposit of the above, 50% of the above is allowed to be withdrawn by the claimant. Balance should be deposited in a nationalised bank as fixed deposit for five years enabling the petitioner to withdraw half yearly interest. With the above observations this appeal is partly allowed. J.B.KOSHY, JUDGE K.T.SANKARAN, JUDGE prp J.B.KOSHY & K.T.SANKARAN, JJ. -------------------------------------------------------- M.F.A.NO.1283 OF 2002 --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 18th February, 2008