IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 MFA.No. 1089 of 2002(B) OPMV.1552/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANT: PETITIONER IN O.P.(MV) NO.1552/1992 ---------------------------------------------- DANY, S/O. AUGUSTINE, AGED 24 YEARS, ANJIPARAMBIL HOUSE, CHILAVANOOR, ELAMKULAM, ERNAKULAM. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS: RESPONDENTS NO.2 TO5 IN OP(MV)NO.1552/1992 ------------------------------------------------------- 1. P.A.MAJEED, S/O. P.B.AZEEZ, PORANJIKASSERY HOUSE, NAMBIYAMPURAM, PALLURUTHY, COCHIN-6. 2. NEW INDIA ASSURANCE CO.LTD., ALWAYE. 3. MARY XAVIER, W/O.XAVIER, RESIDING AT XII/36, KOCHERRY HOUSE, MANJALIPAUDAMKARAN, NADAMA VILLAGE, AROOR DESOM, ERNAKULAM. 4. JOHNY, S/O. XAVIER, DO. R2 BY ADV. SRI.P.G.GANAPPAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. ---------------------------------------------------- M.F.A. NO. 1089 OF 2002 ---------------------------------------------------- Dated this the 19th March, 2008 JUDGMENT J.B.KOSHY, J. The appellant/claimant at the age of 12, sustained very serious injuries in a motor accident on 28.8.1990. He, represented by his father, filed the claim petition, claiming an amount of Rs.5 lakhs as compensation. The Tribunal has awarded only Rs.1,14,500/- with interest. The Tribunal found that the accident occurred due to the negligence of the driver of the offending vehicle, insured by the third respondent. The only dispute is regarding the quantum of compensation. 2. The appellant was aged 12 at the time of accident. As can be seen from Ext.A5 wound certificate, he suffered the following injuries: (1) Comminuted fracture of shaft of left humerus at junction of middle and lower third. (2) Fracture of shaft of left ulna in the junction of upper and middle third. (3) Fracture of left femur. (4) Lacerated wound on the whole circumference of right upper thigh from 5 cm below interior superior illiac spine to 11 cm high with degloving of skin of whole of right thigh to the level of knee joint. (5) Swelling over right lateral malleolus with small laceration over it. Ext.A6 is the discharge summary issued from Medical Trust Hospital, Ernakulam. He was admitted there on 28.8.1990 and was discharged on 12.10.1990. Wound debridement and nailing of left femur was done. Ext.A7 is the discharge card issued from the Cochin Hospital, Ernakulam. He was M.F.A. NO.1089 OF 2002 :: 2 :: admitted there on 10.5.1993 and was discharged on 21.5.1993. He was admitted there to remove the nail at the fracture site. It has come out in evidence that muscles of his right thigh was crashed. Despite skin grafting there was no improvement in the muscle position. Ext.A10 certificate shows that there is 30% permanent disability. The Tribunal did not calculate any compensation for permanent disability on a scientific method, but only Rs.20,000/- was awarded. It is contended that the appellant has suffered serious disfigurement due to the injuries sustained and the muscles of his right thigh has been entirely lost. There was mal-union of fracture. He has to live with this disability throughout his life. We are of the view that compensation can be granted on the basis of multiplier method. As per the Second Schedule, the annual notional income of a non-earning person is Rs.15,000/-. Even though the Second Schedule was framed in 1994 and accident occurred in 1999, we are not enhancing the notional income. Considering the injuries, there is no reason to disbelieve the doctor. The doctor assessed 30% disability. Since the appellant was aged 12 at the time of accident, taking guidance from the Second Schedule, 15 is the multiplier. If that be so, compensation payable will be 15,000 x 15 x 30/100 = Rs.67,500/-. The Tribunal has awarded only Rs.20,000/- for loss of earning power and disability. So, the appellant will be entitled to an additional compensation of Rs.47,500/- for loss of earning power and disability. It was argued that no amount was granted for future treatment. But considering the total amount granted and the interest to be earned, we are not awarding any separate amount for future treatment or additional compensation under other heads. The additional M.F.A. NO.1089 OF 2002 :: 3 :: amount of Rs.47,500/- should be deposited by the second respondent insurance company with 7.5% interest from the date of filing of the appeal (13.8.2002) till its deposit. We note that the appeal was filed with a delay of 565 days. Since the appeal was filed with a long delay, we allow interest only from the date of filing of the appeal. 3. The accident occurred in 1999. About two decades have passed. In the above circumstances, on deposit of the amount the appellant is allowed to withdraw the same. The Miscellaneous First Appeal is allowed partly. (J.B.KOSHY) Judge (K.T.SANKARAN) Judge ahz/ J.B.KOSHY & K.T.SANKARAN, JJ. -------------------------------------------- ------------------------------------------- M.F.A.NO. 1089 OF 2002 B JUDGMENT 19th March, 2008 -------------------------------------------