IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 MACA.NO. 747 OF 2007() ----------------------------------- OPMV.805/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------------------------------- KINAVAKKAL VALSALAN, AGED 48 YEARS, S/O KUNHAPPA, RAVINDRA NIVAS, NIRMALAGIRI P.O., THALASSERY TALUK. BY ADV. SRI.P.P.RAMACHANDRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL RESPONDENT(S): RESPONDENTS ----------------------------------------------- 1. P.P.SUBAIR, S/O ABDULLA, AGED 25 YEARS, PUTHIYAPURAYIL HOUSE, THILLENKERI AMSOM, ALAYAD P.O. 2. ABDUL GAFFOOR, S/O MUHAMMAD HAJI, RELLA MANZIL, MARAYOOR P.O., MALAPPURAM. (DELETED) 3. NATIONAL INSURANCE CO. LTD., KEY'S SHOPPING COMPLEX, NARANGAPURAM, THALASSERY. 4. P.MOOSSAKUTTY, S/O KUNHUTTY HAJI, PALLANTHOLIL HOUSE, P.O.PANAKKATTUR. (DELETED) NAMES OF SECOND AND FOURTH RESPONDENTS DELETED FROM THE ARRAY AS PER ORDER DATED 19.10.2007 IN I.A.2362 OF 2007 ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.747 of 2007 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of December, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. Appellant sustained injuries in a motor accident on 8.7.1999. He was riding a Scooter. Jeep driven by the first respondent, owned by the second respondent and insured with the third respondent, respectively came from behind and hit the Scooter. He alleged, and Tribunal also found that the accident occurred due to the rash and negligent driving of the Jeep by the first respondent. As against the claim of Rs.6,00,000/-, Tribunal awarded Rs.2,97,850/- as compensation with interest. Appellant is not satisfied with the compensation awarded and preferred this appeal. 2. Heard counsel for appellant and contesting respondent. 3. Point for consideration is whether the appellant is entitled to get enhanced compensation. 4. Perused relevant records. 5. The Point: Appellant was aged 43 years at the time of accident. As per paragraph 8 of the award, appellant suffered the following injuries and underwent treatment: M.A.C.A. No.747 of 2007 -: 2 :- “At first he was taken to Government Hospital, Kuthuparambu. Further, he was admitted in the Co-operative Hospital, Thalassery. Exhibit A3 is the true copy of the Accident Register-cum-wound certificate issued from the Government Hospital, Kuthuparamba. The injuries sustained to the petitioner noted in it as:- 1. Multiple abrasions over the nose and forehead. 2. Lacerated wound on back of scalp 2 cms x bone deep. 3. Abrasion over the left hand. Exts.A7 and A8 are the 2 Discharge Summaries issued from the Co-operative Hospital. Ext.A6 is the C.T. Scan Report dated 8.7.1999. The impressions noted in it are: 1. Small hemorrhagic contusion in left basal gaglia. 2. Small gyral contusion with minimal subarachnoid haemorrhage in left frontal lobe. Ext.A7 is in respect of his admission in the hospital from 8.7.99 to 20.7.99. He had given M.A.C.A. No.747 of 2007 -: 3 :- special attention and treated conservatively by applying medication. Ext.A8 is the Discharge Summary pertaining to his readmission in the hospital from 6.1.00 to 13.1.00. He was admitted with seizure. He had developed significant ataxia. He was treated by applying medication. There were 2 reviews to the petitioner on 17.1.00 and 27.1.00. Ext.A9 series are 2 OP Cards issued from the Co- operative Hospital dated 9.2.00 and 14.3.00. Ext.A12 is a Medical Certificate issued by Dr.Bijoy Kumar, Neuro Surgeon, Co-operative Hospital, Thalassery on 19.12.01. It is made mentioned in Ext.A12 that the petitioner was admitted in the hospital on 8.7.99 with alleged RTA and had on examination GCS - 12/15 E3 M6V3and had right VII palsy and right mild hemiparesis. CT scan showed a left post frontal and periventricular contusion and left internal capsule dot contusion with subarachnoid haemorrhage and oedema. He developed motor aphasia on the 5th day after admission and was continued on antiodema measures and anticonvulsion. Patient had total resolution of his motor aphasia, on review after one month. He was also treated for continuing post traumatic epilepsy and was treated till January 2001 with anticonvulsion and stopped M.A.C.A. No.747 of 2007 -: 4 :- of the same since February 2001. Ext.A11 is a Medical Certificate issued by Dr.P.V. Ranjith, Neurologist, Indira Gandhi Co-operative Hospital, Thalassery on 28.11.2002 stating that the petitioner is under his treatment from 28.10.2002 for post traumatic memory impairment and anosmia. He still have complete loss of smell sensation and memory impairment”. Medical Board certified 60% disability for the appellant finding that appellant had anosmia and post traumatic epilepsy on account of the injuries suffered by him. Appellant underwent inpatient treatment for quite long time. Tribunal awarded compensation, the break-up figure of which is given in paragraph 10 of the Award. It is contended by counsel for appellant that compensation awarded is low. It is also contended that though appellant had produced Exhibit A21, Tribunal found that no reliable evidence is adduced to prove the monthly income and fixed Rs.2,000/- as the monthly income of the appellant. 6. Appellant, during the time of accident was running a Jewelley shop at Koothuparambu. As per Exhibit A21, his half yearly income assessed was Rs.42,000/-. Learned counsel wanted us to fix the monthly income of the appellant based on Exhibit A21 contending M.A.C.A. No.747 of 2007 -: 5 :- that on account of the injuries and its consequences, appellant is not able to run his business as before. Even if Exhibit A21 is accepted as indicating his half yearly income during the time of Exhibit A21, that does not mean that appellant is entitled to get compensation based on Exhibit A21. It is not the case of the appellant, and there is no evidence in that line that his business was stopped. In other words, it is possible for the appellant to carry on the business, though he may not be able to attend to his business as before. In such situation Tribunal found the loss that is caused to the appellant on account of his not being able to mange the business personally as before. According to Tribunal monthly income is Rs.2,000/-. Considering his age, nature of business and also taking into consideration Exhibit A21, we are inclined to think that the monthly fixed is towards the lower side. It is possible that on account of the injuries, appellant not able to manage the business personally as before and is suffering loss to that extent. Considering all relevant factors, we fix the monthly income of the appellant as Rs.3,000/- for the purpose of awarding compensation. Disability certified by the Medical Board was accepted by the Tribunal. Considering the age of the appellant, multiplier taken by the Tribunal is 15. These aspects did not require interference. Fixing monthly income as Rs.2,000/-, Tribunal awarded M.A.C.A. No.747 of 2007 -: 6 :- Rs.2,16,000/- for disability and loss of earning power. So compensation has to be re-fixed on that count since we have re-fixed the monthly income of the appellant to Rs.3,000/-. Viewed in that line, compensation payable for disability and loss of earning power is Rs.3,24,000/- ([3000x12x15x60/100]) as against Rs.2,16,000/- awarded. Additional compensation payable is Rs.1,08,000/-. 7. Considering the serious injuries suffered by the appellant and proved by documentary evidence, Tribunal awarded Rs.12,000/- as loss of earnings for a period of six months (at the rate of Rs.2,000/-). Since we have revised the monthly income to Rs.3,000/-, appellant is entitled to get Rs.18,000/- on that count and less the sum of Rs.12,000/- already awarded, additional compensation payable is Rs.6,000/- 8. Learned counsel for appellant strenuously contended that compensation awarded on other counts are low. We have gone through the award and heard submission of counsel on both sides. Considering the nature of the injuries suffered, period of treatment undergone and the medical expenses claimed, proved by the appellant and awarded by the Tribunal, we are inclined to think that compensation awarded on those counts are just and fair and required no interference. We also take note of the additional compensation M.A.C.A. No.747 of 2007 -: 7 :- which the appellant is found entitled, in holding so. Thus appellant is entitled to get additional compensation of Rs.1,14,000/- with interest at the rate of 7.5% per annum from the date of application till realisation. Resultantly, this appeal is allowed in part allowing the appellant to realise a further amount of Rs.1,14,000/- (Rupees One lakh and fourteen thousand only) with interest at the rate of 7.5% per annum from the date of application till realisation from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the offending vehicle is directed to deposit the said amount. On deposit, appellant is permitted to withdraw the same. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv