IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 MFA.No. 114 of 2003() ------------------------------ OPMV.2/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/PETITIONER ------------------------------------ SURESH, RESIDING AT KALEKODATH HOUSE, THALIKULAM, THRISSUR DISTRICT BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.PRINCE.K.ELIAS SMT.P.K.RADHIKA RESPONDENTS/RESPONDENTS --------------------------------------------- 1. C.V.PAULY, RESIDING AT CHAKIATH HOUSE, P.O.KARUKUTTY, ERNAKULAM DISTRICT 2. M.D.THOMAS, RESIDING AT MADATHUMPADY HOUSE, P.O.MOOKKANNUR, ERNAKULAM DISTRICT 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, PERINCHERRY BUILDING, ROUND NORTH, THRISSUR-1 ADV. SRI.LAL GEORGE FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B. Koshy & Thomas P.Joseph, JJ. -------------------------------------- M.F.A. No.114 of 2003 --------------------------------------- Dated this the 21st day of November, 2008 Judgment Koshy,J. Appellant/Claimant sustained injuries in a motor accident on 30.9.1999. For the serious injuries sustained in the accident, he claimed compensation of Rupees Six lakhs. Tribunal found that the accident occurred due to the negligence of driver of the vehicle insured by the third respondent-insurance company and the insurance company admitted the liability. Insurance company was directed to deposit Rs.3,74,300/- inclusive of medical reimbursement. Since the insurer admitted the liability, they were directed to deposit the amount with interest. The only dispute is regarding the quantum of compensation. 2. The age of the appellant at the time of accident was 28. Appellant is a driver by profession. At the time of accident also, he was driving the vehicle. He was having professional driving licence. It is claimed that he was getting Rs.4,000/- per month, but, there is no evidence to prove the same. Accident occurred in 1999. M.F.A.No.114/2003 2 Since he was a driver with professional licence, we are of the opinion that at least Rs.2,500/- should be fixed as the monthly income of the claimant at the time of the accident, taking at least Rs.100/- per day for 25 days' work in a month. With regard to the injuries in the accident, the Tribunal observed as follows at paragraph 31: "Ext.A28 is the copy of the wound certificate. The injuries noted are as follows: '1. Multiple abrasions face and both lower limbs; 2. 4 x 2 x 1 c.m. lacerated wound in front of jaw; 3. Fracture both femur bones; 4. Hemoperitoneum with multiple mese-nteric tears.' Ext.A29 series are five reference/discharge cards. Ext.A30 is a disability certificate dated 11.6.2001 issued by Dr.Jacob P.J.,Senior Lecturer in Orthopaedics, Medical College Hospital, Thrissur. The following things are noted in this document: "The petitioner was in a state of shock with: (a) Bi-lateral comminuted fractures of femur; M.F.A.No.114/2003 3 (b) Blunt injury of abdomen with hemoperitoneum and mesenteric tear and; (c) Extensor tendon injury to middle, ring and little fingers of right hand." Emergency resuscitation was done. Multiple blood transfusion was given. Emergency laperotomy wass done and arrest of bleeding from mesenteric vessels was achieved. Bi- lateral skeletal traction was done for both the femurs. After three weeks, he had major surgeries in both the femurs (K-nailing and bone grafting). Unfortunately, post operatively he developed infection in both the femurs. The focus of infection was probably from the abdomen. Wounds were left open and he was treated with high dose antibiotics. In spite of adequate treatment, he developed chronic infection in both the femurs with multiple sequestrums in both the femurs. He was discharged on 30.12.1999 with the advice to do daily dressings at home. He was regularly doing the dressings at home for the next two months. He was re-admitted on 20.4.2000 with exacerbation of infection. In both the femurs, he had fulminant infection. Surgery was done for him in two stages. Ext.A35 is a certificate dated 24.9.2001 issued by Dr. Jacob P.J. It is certified in this document that after the discharge of the petitioner from the hospital on 30.12.1999, he used to visit regularly the Ortho O.P. of the hospital once in two weeks for the past 1 1/2 years. Ext.X1 is the case record showing the injuries and treatments of the petitioner issued from the Medical College Hospital, Thrissur. From these facts, it is evidence that the M.F.A.No.114/2003 4 petitioner had sustained serious injuries in the accident for which he is entitled to compensation." Ext.A30 is the disability certificate issued by the doctor who treated him. He certified 57% partial permanent disability. It is stated in the above certificate that there is ulcer on his both thighs and the bones have not been united, that there was infectious wound even after long treatment and the physical disability was permanent. It is also stated that he is unable to earn anything and he cannot drive the vehicle in future. According to the medical certificate, loss of earning capacity is 90%. It is contended by the counsel for the appellant that he is unable to do any work. He cannot stand or walk. His right hand was also disabled. According to the claimant, there is 100% loss of earning capacity. Since he is unable to walk, he will not get any employment. Tribunal did not award compensation on a multiplier basis, but, Rupees Two lakhs was awarded as lumpsum towards permanent disability. It is well settled law that compensation has to be awarded on a scientific basis taking multiplier method. Since the appellant was aged 28, taking guidance from the second schedule, 18 is the multiplier. If that be so, compensation payable even for 57% disability will be Rs.2500 x M.F.A.No.114/2003 5 12 x 18 x 57 = Rs.3,07,800/-. Therefore, the appellant will be 100 entitled to an additional amount of Rs.1,07,800/- for disability and loss of earning power. He has to undergo the suffering till the end of his life. He is also entitled to Rs.10,000/- for loss of amenities. Tribunal found that he was under treatment for 26 months and Rs.52,000/- was awarded for actual loss of earning taking Rs.2,000/- as the monthly income. Since we have increased the income by Rs.500/- per month, he will be entitled to an additional amount of Rs.13,000/- for actual loss of earning. It is contended that compensation granted under other heads are very low, but, considering the total amount, we are not enhancing the amount under other heads. Therefore, total additional amount payable will be Rs.1,30,800 and the above amount of Rs.1,30,800/- should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit over and above the amount decreed by the Tribunal. On deposit of the amount, Rs.50,000/- is allowed to be withdrawn by the appellant. M.F.A.No.114/2003 6 Balance should be deposited in a nationalised bank for five years enabling the appellant to take interest at quarterly rests. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.F.A.No.114/2003 7 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.F.A.No.114/2003 ------------------------------------- Judgment Date:21st November,2008