IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 MFA.No. 194 of 2002() ----------------------------- OPMV.247/1997 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/ PETITIONER ------------------------------------ REJU K.THARAKAN,S/O.L.K.THARAKAN, L.I.G.569, PENAMPILLI NAGAR,COCHIN-36. BY ADV. SRI.T.K.KOSHY RESPONDENTS/ RESPONDENTS ---------------------------------------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM - 23. 2. GEORGE,S/O. FRANCIS,VALIYAPARAMBIL HOUSE ANAPPUZHA KARA, METHALA VILLAGE,KODANGALLUR TALUK. BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.194 OF 2002-D ---------------------------------------------------- Dated this the 18th day of June, 2008. JUDGMENT Koshy, J: The appellant/claimant sustained serious injuries in a motor accident on 6.10.1996. The total compensation claimed by the appellant was Rs.12,62,750/=. But the Tribunal awarded only Rs.4,32,000/= including Rs.2,70,000/= granted for reimbursement of medical expenses. The only dispute is regarding the quantum of compensation. 2. The appellant was aged 23 years at the time of the accident. The Tribunal has taken only 15 as the multiplier. The Apex Court held that highest multiplier should be taken as the accident victim is aged between 20 and 25. As per 2nd schedule, 17 is the apt multiplier for a 23 years old accident victim. A three Bench decision of the Hon'ble Supreme Court in Smt. Supe Dei & Others v. National Insurance Co.Ltd & another (JT 2002 suppl.1 SC 451) held that though 2nd schedule of the Motor Vehicle Act is framed for determination of compensation under Section 163 A, it can be MFA.194/2002 . 2 adjusted for calculation of compensation for claim under Section 166 alone. The same view was upheld by the Hon'ble Supreme Court in Abati Bez Haruch v. Deputy Director General of Geological Survey of India & another (JT 2003 (5) SC 205) and recently it was held in APSRTC v. M. Pentaiah Chary (AIR 2007 SCW 5689). Therefore , the Tribunal ought to have taken 17 as the multiplier. 2. With regard to the injuries are concerned, the Tribunal considered the same as follows: “The applicant sustained the following injuries as revealed from Ext.A6, the copy of the wound certificate issued from NSS hospital, Pandalam. Ext.A7, the copy of the wound certificate and Ext.A8 the discharge certificate issued from Medical Trust Hospital, Ernakulam. 1. Contusion on the right thigh 5x5cm 2. Lacerated injury on he right leg 3x2x1cm 3. Lacerated wound on the forehead 7x2cm 4. Lacerated wound back on right thigh 8x3x1cm 5. contusion on the right forearm 3x3cm 6. Swelling and deformity of left wrist. 7. X-ray of left wrist showed displaced colles fracture with fracture of trapezium. 8. Swelling and deformity of left forearm. 9. X-ray of left forearm showed comminuted fracture of both bones MFA.194/2002 . 3 middle 3rd with fracture scaphoid. 10. degloving injury on the right leg middle 3rd. 11. X-ray showed comminutted fracture middle 3rd of right femur with fracture of lateral femoral condyle with angulation. 12. Fracture of both bones right leg with tibia segmental with fracture mavicular with angulation of tibia. 13. Swelling on left ankle. 14. X-ray of left ankle showed chip fracture of talus. 15. X-ray of pelvis showed fracture of superior and inferior pubic ramus left. He was admitted on 8.10.1996 and was discharged on 10.1.1997. External fixation, open reduction, internal fixation for the fracture right forearm, open reduction and interlocking for the fracture of right femur and skin grafting were done. He w as readmitted on 10.2.1997 with jaundice and was discharged on 11.3.1997. He w as again readmitted on 3.4.1997 and was discharged on 8.4.1997. Later he was readmitted on 15.5.1997. Thereafter he was several times admitted and treated till recently as revealed from the treatment records Ext.A14. Now the applicant has a disability of 30% as certified by the medical board in Ext.A9.” Accepting the above, compensation was granted for 30% permanent disability. In any way, we are not inclined to enhance the percentage of disability as certified by the medical board and accepted by the Tribunal. With regard to the monthly income, it is MFA.194/2002 . 4 the case of the appellant that he was a cement dealer and he was having hardware shop room. According to him, he was an agent of Sankar Cements. Ext.A12 licence fee and professional tax receipt was produced by him to prove the same. Ext.A13 also shows that he was doing business. However, document showing exact income was not produced. He was aged 23 years at the time of the accident. The accident occurred in 1996. Even though Rs.5,000/= was claimed as his monthly income, in the absence of exact evidence, we fix his monthly income as Rs.2,500/= (Rs.100/= for per day's work). If that be so, the compensation payable for 30% disability will be Rs.1,53,000/= (2500x12x30/100x17). The Tribunal has granted Rs.81,000/= for permanent disability and loss of earning capacity. After deducting Rs.81,000/= awarded by the Tribunal, additional compensation payable for disability, loss of earning power, other consequences etc will be Rs.72,000/=. It is contended that loss of actual earnings for the period he underwent treatment, the Tribunal did not award any amount. We are of the opinion that as he was inpatient for five months, he is entitled to Rs.15,000/= for the period he was hospitalised. Even though it is contended that the compensation awarded under all other heads was inadequate, considering the total amount, we are not MFA.194/2002 . 5 enhancing the compensation on other counts. The additional amount of Rs.87,000/= should be deposited by the 1st respondent with 7% interest from the date of applicatin till the date of deposit over and above the decreed amount. On deposit of the said amount, the appellant is allowed to withdraw the same. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MFA.194/2002 . 6 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.194 OF 2002-D JUDGMENT 18th day of June, 2008.