IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 MACA.No. 462 of 2003() ---------------------- OPMV.370/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER ------------------------------------- ASHARAF, S/O.SULAIMAN, POOTHAKUZHIYIL, VELLAYAMKUDY. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR RESPONDENTS: 1ST & 2ND, 3RD RESPONDENTS: ------------------------------------------------------------------------- 1. REV.FR.JOSE VARICKAMAKKAL, ST.EPHRUMES CHURCH, CHIRAKKADAVU, KANJIRAPPALLY. 2. KURIAN AUGUSTHY, OVELIL HOUSE, VELLAYAMKUDY, KATTAPPANA. 3. THE MANAGER, NEW INDIA INSURANCE CO. LTD., CENTRAL JUNCTION, KATTAPPANA. BY ADV. SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.462 OF 2003 () ----------------------------------- Dated this the 4th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/claimant, at the age of 9, sustained very serious injuries in a motor accident. He along with his representative guardian claimed compensation for Rs.75,000/-. Later, claim was enhanced to Rs.2,25,000/-. Tribunal awarded a total compensation of Rs.80,000/- and directed the 3rd respondent Insurance company to deposit the same. Only dispute is regarding the quantum of compensation. 2. Ext.A4 is the wound certificate. It shows contusion on the right eye, laceration on the right side of the face and multiple abrasions on the shoulder. Exts.A5 and A6 are the certificates issued from the Little Flower Hospital, Angamaly, where the petitioner was treated for the injuries to his eyes. MACA.462/03 2 Ext.A5 certificate shows that the right eye sight was completely lost. PW2 Doctor, who treated him also stated that his left eye vision was also affected. But according to him, he cannot definitely say that the loss of vision in the left eye may not be the result of the injuries in the accident as the injuries occurred in the right eye. Tribunal found that right eye sight was lost due to the accident. Apart from the above, there was fracture on the maxilla. The medical certificates shows that because of the fracture of the maxilla, there was difficulty in opening the mouth. Tribunal awarded only Rs.25,000/- for disability. It is true that medical certificate produced shows that his right eye vision was lost due to the injuries in the accident and a surgery was conducted on the mouth for opening the mouth. When he was able to open the mouth partially, he was advised physiotherapy for the complete range of jaw movements (Annexure I). Annexure III shows that there is malunited fracture of (R) zygomatic complex. Ext.A5 certificate produced shows that even for the left eye, surgery was done. It is the contention of the appellant that because of the fracture in the right zygomatic complex, left eye was also MACA.462/03 3 affected. In any event, right eye was lost due to the accident. Tribunal did not grant compensation on a multiplier method. Under the Workmen's Compensation Act, for loss of vission of one eye without affecting the other eye, loss of earning capacity is fixed as 30%. Here there are other complications also. In any event, compensation for atleast 30% disability ought to have been awarded by the tribunal. The incident occurred on 28.1.1992. In 1994, when the 2nd Schedule was framed, notional income of a non-earning person was fixed as Rs.15,000/- (Rs.1,250/- per month). Since the accident occurred two years earlier, we fix notional income as Rs.12,000/- and 15 is taken as the multiplier taking guidelines from the 2nd Schedule even though it was argued that he has suffered the disability at the young age and he having to live with the disability till his death. Therefore, compensation payable for 30% disability will be Rs.12,000 x 30/100 x 15 = Rs.54,000/-. From that, Rs.25,000/- already granted for disability has to be deducted and additional compensation payable will be Rs.29,000/-. It is contended that he has to undergo physiotherapy also. MACA.462/03 4 Annexure 4 was produced to show that he spent about Rs.13,500/- for physiotherapy. It is contended that because of the loss of eye sight, he was not able to do anything. So, for additional medical expenses, we award Rs.6,000/- more. Therefore, he will be entitled to Rs.35,000/- more than that is awarded by the tribunal. The above amount of Rs.35,000/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the tribunal. Since the accident occurred in 1992 and the claimant has become major, on deposit of the above amount, he is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.A.C.A.NO.462 OF 2003 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008