IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 MACA.No. 1633 of 2006() ----------------------- OPMV.1510/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/3RD RESPONDENT: ------------------------------------------ UNITED INDIA INSURANCE COMPANY LIMITED, KANNUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, `SHARANYA', HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT/PETITIONER: ------------- ANURAG T., REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN T.P. NARAYANAN NAMBIAR, S/O. NARAYANAN, POTHERI PARAMBA, P.O. MUNDAYAD, KANNUR-670 597. R1 BY ADV. SRI.P.M.PAREETH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.A.C.A.NO.1633 OF 2006 (C) ----------------------------------- Dated this the 10th day of April, 2008 J U D G M E N T KOSHY,J. A 20 year old young boy sustained injuries in a motor accident due to the negligence of the driver of the vehicle insured by the appellant Insurance company. The tribunal awarded a total amount of Rs.22,16,000/-. Out of which, Rs.12,85,000/- was awarded for future treatment. For that part of the amount, only interest was awarded from the date of award. Only quantum of compensation is disputed in the appeal. The tribunal considered the injuries as per the medical certificate at paragraph 11 which is as follows: “11. Ext.A5, the wound certificate would reveal that the petitioner was brought to the casualty in an unconscious state at 9 a.m. on 23.2.2000. The pupils were not reacting. CT Scan was taken and the report showed left MACA.1633/2006 2 tempero parietal subdural haematoma, left parietal depressed fracture. Patient underwent left fronto-tempero parietal craniotomy, decompression, removal of subdural haematoma and elevation of depressed fracture and tracheostomy was done on 23.2.2000. He was treated at ICU with Rylestube feeding and other supporting measures. Later he was scanned on 29.2.2000 and the report shows left front parietal haemorrhagic infarct, right frontal haemorrhagic contusion, cerebral oedema. Later CT Scan was taken on 1.5.2000 and it would reveal no hemorrhage, there is a small area of hypodensity in the left parietal lobe. However, he was discharged in a bedridden condition on 4.5.2000. Ext.A2 is the discharge card issued by the Dhanalakshmi Hospital, Kannur. Ext.A3, the discharge card issued by S.M.Hospital, Kannur would reveal that the petitioner was admitted in that hospital on 4.5.2000 and discharged on 20.8.2000. He had been there as inpatient for 106 days. Ext.A7 is the treatment certificate issued by Dr.S.C.Bantwal who treated the petitioner at Dhanalakshmi Hospital, Kannur. His treatment certificate would reveal that left tempero-parietal subdural haematoma of the brain and left parietal depressed fracture of the skull. A left fronto-tempero-parietal craniotomy was done, the subdural haematoma was evacerated and depressed fracture was elevated. The petitioner had also undergone a tracheostomy and was ventilated in the post operative period. His position was critical with related complication of Septicaemia, uraemia, respiratory infection and diabetes treated and gradually brought under control. This report also would reveal that immediately he was admitted in S.M.Hospital, Kannur on 4.5.2000 and continued treatment, physiotherapy and tracheostomy under the care of PW4. He had epileptic fit and it was controlled with medication and gradually improved. On discharge he was treated at home. At that time, his disability was MACA.1633/2006 3 at 100%. He was advised to continue intensive supporting care and regular follow up and medication. Ext.A13 series are the discharge summaries issued by Kottakkal Arya Vaidya Sala. These three summaries would reveal that the petitioner had been treated as inpatient in Kottakkal Arya Vaidya Sala for the period from 3.4.04 to 2.5.04, 7.1.05 to 4.2.05 and 5.10.05 to 2.11.05. He was treated there for traumatic paraplegia.” The medical board by Ext.A11 certificate assessed disability at 100%. PW3, one of the five members of the Medical Board deposed that the petitioner was having post-traumatic brain damage with extreme manifestation with total quadriplegia and difficulty in speaking. He cannot sit even with the help of others on a wheel chair. He also deposed that even if expert treatment is given, it is unlikely to improve his present condition. To the question put by the tribunal he stated that permanent medication is required for antispasticity of limbs, general nursing care necessary to prevent pulmonary complication, wheel chair facility for ambulation physiotherapy to prevent deformity of joints. Appropriate drugs are required for preventing urinary infection. Urinary bladder catheterisation is required to remove urine. PW2, the doctor who has been treating the petitioner, also deposed that there MACA.1633/2006 4 are no medicines to correct brain damage to certain extent. The condition of the patient was not improved much from the condition as on the date of accident. He also stated that the petitioner cannot walk with the help of others and further that he is not responding positively to the treatment. But tribunal assessed only compensation for 90% disability even though there was no likelihood of getting any earning from employment for him and he was completely bedridden. He was even unable to sit in a wheel chair. Tribunal took 16 as the multiplier even though he was aged 20 years and only Rs.1,500/- was fixed as the notional income. Considering these evidence, compensation awarded was not seriously disputed for disability etc. But the dispute is regarding future medical expenses awarded. 2. Counsel for the Insurance company pointed out that in the original claim petition, no claim for future treatment was made. But after the arguments were over, claim was amended. However, as rightly pointed out by the tribunal that Honourable court in Nagappa v. Gurudayal Singh and others (AIR 2003 SC 674) held that compensation for future treatment should be granted where the victim injured periodically and he MACA.1633/2006 5 cannot file application and it is the duty of the tribunal to assess the same. Therefore, tribunal awarded compensation for future treatment expenses. For that the tribunal considered various evidence which is as follows: “PW3, the Doctor, who was one of the members of the Medical Board, with reference to Ext.A11, would swear that the injured require the help of an attendant and permanent medication because of post-traumatic brain damage. This witness would further swear that he cannot sit even with the help of others and that it is unlikely to improve the present condition. According to his evidence that permanent medication is required for antispasticity of limbs and incontinence of bladder and to prevent bed-sore, general nursing care to prevent pulmonary complication. Urinary bladder catheterization is also required to remove urine.” PW4, another doctor who has treated him stated that he was not able to walk even with the help of others. For his all needs, a help is necessary and even by treatment also there is no likelihood of improvement in his present condition. According to PW4, he may require Rs.300 to 400 for treatment and expenses of a bystander. He has to take everyday a Nutropil 800, which costs Rs.8.02 per pill and the dosage prescribed is 2 - 2 - 2 and he has to spend Rs.53/- for that medicine for a MACA.1633/2006 6 day. Other medicines are also necessary. Apart form that for removal of urine, urinary bladder catheterisation is necessary and even to prevent bed-sore various other expenses will have to be incurred. It is true that at the time he has to spend about Rs.150/- per day for medicines alone. But his father was 70 years old. Bye stander expenses and costs of medicines are increasing day today. Costs of engaging home nurse or a substitute is also increased. Therefore, the calculation of the tribunal that he may require Rs.7,000/- per month is not excessive. But tribunal has calculated compensation in such a way that for about 40 years he will be live. We have to take into consideration the pragmatic conditions. If at present a Fixed Deposit is made in a Nationalised Bank for more than 5 years, it will fetch 9% interest per annum. In the above circumstances, if Rs.10 lakhs is ordered to be deposited, its interest will amount to Rs.90,000/- per year at Rs.7,500/- per month. Even if monthly interest is payable he may get Rs.7,500/- per month. It is submitted that for last two years no amount was given for medical reimbursement. In the above circumstances, we direct the Insurance company to deposit an amount of Rs.10 lakhs instead of Rs.12,85,000/- with interest from the date of award at the rate awarded by the tribunal MACA.1633/2006 7 apart from the compensation granted for other counts. Accordingly amount due under the award is deposited by the Insurance company and out of the awarded amount, tribunal should deposit Rs.10 lakhs in the name of next friend guardian for the period of ten years so that maximum interest can be earned and enabling him to withdraw the monthly interest for treatment of the claimant. If the present next friend predeceased the claimant, it is for the tribunal to appoint another next friend to enable him to withdraw the amount. The amount can be utilised for treatment. Apart from the Rs.10 lakhs with interest on that amount from the date of award, 50% of the balance amount can be disbursed to the next friend. Award is modified with regard to the quantum of compensation regarding medical expenses. All other directions of the tribunal are confirmed. Appeal is partly allowed. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.1633 OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th March, 2008