IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 MFA.No. 1066 of 2001(B) ---------------------------------------- OPMV.1722/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: BABU, S/O POULOSE, CHIRACKA HOUSE, KIDANGOOR HOUSE, ANGAMAL (BEING DISABLED REP. BY HIS NEXT FRIEND AND WIFE MRS.MERCY BABU). BY ADV. SRI.JOSE THETTAYIL SMT.K.P.SREELATHA RESPONDENTS/RESPONDENTS: 1. THE KERALA STATE ROAD TRANSPORT CORPORATION REP. BY ITS MANAGING DIRECTOR, TRIVANDRUM - 695 023. 2. KURUVILLA, S/O CHACKO, MULACHIRA VEEDU, MOOLAVATTOM KARA, NATTAKOM - 686 026. ADV.SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No.1066 of 2001 --------------------------------- JUDGMENT Balachandran, J. Appellant, a disabled person, has preferred this appeal represented by his next friend and wife claiming enhancement in compensation awarded by the Motor Accidents Claims Tribunal Perumbavoor in O.P. (MV)No.1722/94. The case of the appellant is that at about 1 p.m. on 1.2.1994, while he was riding a bicycle and reached Marottichodu, KSRTC bus bearing Reg.No.KL-15/1026, driven by the second respondent in a rash and negligent manner, hit him down from the bicycle and thereby he sustained very serious injuries. He claimed a total amount of Rs.4,95,000/- by way of compensation from the respondents. Against the said claim the Tribunal awarded only an amount of Rs.1,50,000/- and hence this appeal claiming enhancement in compensation. MFA 1066/01 2 2. The claim for enhancement in compensation alone arises for consideration in this appeal and therefore, we are considering that aspect alone. 3. The Tribunal has observed that the injuries sustained to the appellant, stated by him in the petition, namely, multiple intra cerebral contusions on the left parietal and (R) parito occipital regional of the brain is evidenced to be true as seen from Exhibit A5 wound certificate, Exhibit A6 discharge summary, Exhibits A7 and A8 reference letters and Exhibit A9 medical certificate. Exhibit A6 showed that the appellant was treated as an inpatient in the Medical Trust Hospital, Ernakulam for a period of 56 days. Exhibit A7 shows that the appellant was admitted in the Little Flower Hospital, Angamaly due to violent behaviour and poor memory and incoherence and that as he was not showing much improvement, he was referred to one Dr.Babu. The Tribunal has observed as regards the disability of the appellant as follows: MFA 1066/01 3 “To prove that due to the accident the petitioner has sustained disability, the petitioner has produced Exhibit A11 disability certificate issued by Dr.Ravi, Consultant Neuro Surgeon attached to the Medical Trust Hospital, Kochi. Exhibit A11 was marked and proved through PW2, the doctor who issued the same. PW2 gave evidence to the effect that the petitioner underwent tracheotomy and at the time of discharge from the hospital, he was not able to talk properly due to the impact sustained in the accident. While the petitioner was undergoing treatment in the hospital, he was unconscious for a long time. At the time when the petitioner was examined by him he was suffering from post traumatic psychological sequlace in the form of memory disturbance, aggressive and adamant behaviour. The traumatic psychological sequlace in the form MFA 1066/01 4 of memory disturbance may be continued till his death. A married life is also not possible for the petitioner. Even now, he is undergoing treatment in the hospital. The petitioner was represented by his wife as the petitioner is a disabled person.” According to the appellant's case, he was aged 32 and was a contractor earning a monthly income of Rs.2,500/-. It is true that the appellant did not produce any evidence to prove his income. However, the fact remains that he was maintaining a family. The Tribunal has fixed his monthly income only at a meagre amount of Rs.1,000/-, when, as per the second schedule to the Motor Vehicles Act, the notional income of a non earning person is to be taken as Rs.1,250/- per month (Rs.15,000/- per annum). Respondents have no case that the appellant was one having no employment or avocation and was not earning any income. Considering the entire circumstances, we are of the view that monthly MFA 1066/01 5 income of the appellant can safely be fixed at Rs.2,500/- per month as claimed by him. In view of Exhibit A11 disability certificate, we are of the view that at least 50% permanent disability has to be fixed for the appellant, considering his present condition. As he was aged 32 only, the apt multiplier is 17. Therefore, the appellant is entitled to an amount of Rs.2,55,000/- (2500 x 12 x 50/100 x 17) by way of compensation for permanent disability and loss of earning power. The Tribunal has awarded only an amount of Rupees One lakh towards permanent disability and loss of earning power. Deducting that amount, the appellant would be entitled to an additional amount of Rs.1,55,000/- as damages for permanent disability and loss of earning power. Further, as we have fixed the monthly income of the appellant at Rs.2,500/-, loss of income for four months, as estimated by the Tribunal, would itself come to Rs.10,000/- as against Rs.4,000/- awarded by the Tribunal. Therefore, the appellant would be MFA 1066/01 6 entitled to an additional amount of Rs.6,000/- on that count. Thus, the appellant would be entitled to an additional compensation of Rs.1,61,000/- and the said amount shall carry interest at 7.5% per annum from the date of application till its deposit. The first respondent KSRTC shall deposit the said amount within two months from today. On such deposit, an amount of Rs.1,50,000/- shall be invested in Fixed Deposit with provision for the appellant to receive the monthly interest therefrom and the balance amount is allowed to be withdrawn by the appellant Babu, represented by his next friend and wife Mrs.Mercy Babu. Appeal is allowed in part. (J.B.Koshy, Judge) 23rd October, 2008 (K.P.Balachandran, Judge) tkv MFA 1066/01 7 J.B.Koshy & K.P.Balachandran, JJ. -------------------------- M.F.A.No.1066 of 2001 -------------------------- JUDGMENT 23rd October, 2008