IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 MACA.No. 154 of 2004() ---------------------- OPMV.840/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- ABRAHAM KURUVILLA @ ABI, THANNICKAL HOUSE, NATTASSERI KARA, ERANJAL, KOTTAYAM DISTRICT REPRESENTED BY NEXT FRIEND AND GUARDIAN ELEYAMMA ABRAHAM, W/O. ABRAHAM KURUVILLA BY ADV. SRI.V.K.SUNIL RESPONDENT(S): RESPONDENTS -------------------------- 1. MINI JOSEPH D/O. MARY JOSEPH, VELLION, OLASSA, KOTTAYAM. 2. SATRHYAN S/O. PAPPY, MALAYIL THAZHE HOUSE, MANGANAM KARA, MUTTAMBALAM VILLAGE, KOTTAYAM 3. THE NEW INDIA ASSURANCE COMPANY LTD., KOTTAYAM, REPRESENTED BY ITS MANAGER. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.154 of 2004 -------------------------------------- Dated this the 3rd day of December, 2008. JUDGMENT Thomas P.Joseph, J. Appellant, aged 39 years at the relevant time, a headload worker by occupation suffered serious injuries in a motor accident on 7.1.1995. He was riding on the pillion of a motor cycle. The bus driven by the first respondent, owned by the second respondent and insured with the third respondent hit the motor cycle. According to the appellant, accident occurred due to the rashness and negligence of the first respondent. He claimed compensation from the respondents. Appellant was represented in the proceedings by his wife as next friend alleging that injuries suffered in the accident affected his mental capacity. Tribunal awarded a total sum of Rs.1,54,300/- as compensation. Claiming that compensation awarded by the Tribunal is meagre, appellant has preferred this appeal, again represented by his wife as next friend. 2. Heard counsel for the appellant and contesting respondent. 3. Only point for consideration is whether the appellant is entitled to get enhanced compensation. MACA No.154/2004 2 4. The point. Before the Tribunal, wife of the appellant gave evidence as PW1 and deposed that appellant is mentally sick on account of the injuries suffered in the accident. Tribunal observed that the evidence only indicated that appellant has got traumatic eplipsy which did not disable the appellant to initiate proceedings. However, no enquiry as contemplated under Order XXXII Rule 15 of the Code of Civil Procedure is seen conducted. For the appellant to be represented by next friend, it is not necessary that his mental capacity should have been affected. It is sufficient that he is not able to protect his interest in the proceedings and for that purpose, required representation by a next friend. However, since that matter is not under challenge, we are not required to go into that question in this appeal. 5. Ext.A7 is the copy of wound certificate and Exts.A8, A22 and A23 are discharge cards for inpatient treatment of the appellant at different intervals. It is revealed from Exts.A7 and A8 that appellant suffered fracture of ribs, fracture of mandible and head injury. Ext.A9 is a certificate issued by the oral and maxillo facial department. Exts.A10 to A16 and Exts.A18 to A20 are out patient cards issued from District Hospital, Kottayam and Medical College Hospital, Kottayam for his treatment. Ext.A32 is issued by M/s.Anchor Treads Limited showing the employment of the appellant in that concern. Ext.A28 is the MACA No.154/2004 3 certificate issued by the said concern to the effect that appellant rejoined duty as headload worker on 4.5.1995 and continued to work as headload worker and his wages is Rs.133.98 per day. In the application, appellant claimed his monthly income as Rs.3,750/- per month. Ext.A26 is the certificate issued by the Medical Board wherein disability on account of healed fracture of mandible is certified as 1%. However, it is further stated in Ext.A26 by the Opthalmology Department that appellant has loss of smell and taste due to the injuries and has got traumatic eplipsy which resulted in 40% disability. Tribunal has accepted the said recommendation and awarded compensation. 6. Tribunal has taken Rs.2,000/- as the monthly income of the appellant. Considering the fact that he was a headload worker and considering the wages payable to unskilled workers in Kerala during the relevant time, we find no reason to interfere with that finding particularly as Exts.A28 and A32 were not proved by examining the employer. Tribunal however, took 13 as the multiplier though the appellant was aged only 39 years at the time of accident. Taking guidelines from Second Schedule, '15' should have been taken as the multiplier. Therefore, appellant is entitled to get compensation for disability and loss of earning power with '15' as the multiplier which comes to Rs.1,44,000/- [(Rs.2,000x12x40x15)/100] as against Rs.1,24,800 awarded by the Tribunal. Thus, the additional compensation payable on that count is Rs.19,200/-. MACA No.154/2004 4 7. It is contended by learned counsel that compensation awarded on other counts are low. We have gone through the award and find that on other counts, Tribunal has awarded just and fair compensation. Thus, the additional compensation payable to the appellant is Rs.19,200/-. Appellant will get interest at the rate of 7.5% per annum from the date of application till realization. Resultantly, this appeal is allowed in part. Over and above the compensation awarded by the Tribunal, appellant is allowed to realize a further sum of Rs.19,200/- (Rupees Nineteen thousand and two hundred only) with 7.5% interest per annum from the date of application till realization from respondents 1 to 3, jointly and severally. Third respondent being the insurer of the vehicle is directed to deposit the said amount in the Tribunal. On such deposit, appellant is permitted to withdraw the same. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks