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 16TH OCTOBER 2008 / 24TH ASWINA 1930 MACA.No. 629 of 2003(B) ----------------------------------- O.P(MV).NO.116/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY. .................... APPELLANT/ PETITIONER: -------------------------------------- K.M.SREEJITH, S/O. LATE SREEDHARAN VYDIER, AGED 36 YEARS, RESIDING AT KONATH HOUSE, PALLIPOYIL, P.O. MOWANCHERY, KANNUR. BY ADV. SRI.A.MOHAMMED MUSTAQUE. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. P.V.ABDUL RAHIMAN, S/O. MOHAMMED, "RAMSHEENA MANZIL", P.O.KAPPAD, KANNUR. 2. PUTHIYARAMBATH ABDUL SALAM, S/O. MOOSA, AGED 25 YEARS, IRIVERI AMSOM, DESOM, KANNUR. 3. UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, BROTHERS COMPLEX, THALASSERI ROAD, KANNUR. ADV. SRI.P.V.JYOTHI PRASAD FOR R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.629 OF 2003 (B) ----------------------------------- Dated this the 16th day of October, 2008 J U D G M E N T KOSHY,J. Appellant, at the age of 35, sustained serious injuries in a motor accident on 9.6.1996. He claimed a compensation of Rs.5 lakhs alleging that the accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent Insurance company. Total amount awarded was only Rs.87,550/- inclusive of reimbursement of medical expenses. Only quantum of compensation is disputed in this appeal. 2. First contention raised by the appellant is that the monthly income fixed by the Tribunal was very low. He was working as a Manager in a travelling agency. He was maintaining a family. Even though salary certificate was produced certifying that he was getting Rs.3,000/- as monthly income from the travelling agency, due to MACA.629/2003 2 non examination of the proprietor who issued the certificate, it was not accepted by the Tribunal. In the absence of clear evidence, only Rs.15,000/- was taken as the annual yearly income (Rs.1,250/- per month) which is fixed as per the 2nd schedule for a non earning person. Petitioner was an earning person maintaining a family. He was aged 35 years. Considering these facts, we are of the opinion that atleast Rs.2,000/- ought have been taken as the monthly income. Doctor certified 40% disability. But Tribunal has taken only 15% disability. Ext.A3 is the reference card issued from the Medical College Hospital, Kozhikode which shows that when claimant was brought to the hospital, he was in a comma stage and he had head injury. The Scan report shows the head injury and he was treated by the Neurologist. Drugs for preventing epileptic fits like phenobarbital was given from the Hospital. Exts.A5 and A6 series of prescriptions shows that he continued treatment for disability. Ext.A7 certificate issued by Dr.Gangadharan of Medical College Hospital, shows that the disability was 40%. PW1, Dr.Musthafa was examined to prove the disability certificate. He has also treated the appellant and Sri.Gangadharan was not examined. Doctor MACA.629/2003 3 deposed that the claimant was unconscious when he was admitted and he was discharged on 9.7.1996. That shows that one month he was under inpatient treatment in the Government Medical College Hospital. Dr.Gangadharan who issued the certificate died. He was advised to take anti-convulsants continuously. Ext.X1(a) is the scan report which shows that there was small extradural haematoma on the right middle cranial fossa, extensive sub-arachnoid haemorrhage, haemorrhagic contusion in left frontal lobe, extra-cerebral haematoma in the right high-parietal region and suspected frontal bone fracture on the right side. Subsequent treatment also shows that there was double vision due to the head injury. Ext.A7 also shows that he has double vision right eye and there was post-traumatic head-ache and giddiness. Since the head injury was treated by a Neurologist and Dr.Gangadharan was a General Surgeon, Tribunal did not accept the certificate assessing 40% disability. Tribunal found that he had diplopia, head-ache and giddiness and was continuously taking anti-convulsants but fixed 15% disability only. The motor accident claimant's evidence has to be taken in a similar manner. The certificate was issued by the doctor of MACA.629/2003 4 the Government Medical College Hospital, Kozhikode, it was proved by another doctor. He also treated the claimant. Merely because Dr.Gangadharan was only a General surgeon, considering the injuries, atleast compensation ought have been awarded for 25% disability. Tribunal has fixed 15 as the multiplier. It is contended that as per the 2nd schedule, 17 is the apt multiplier. But we are not enhancing the same. Therefore, compensation payable for 25% disability is Rs.2,000 x 12 x 15 x 25/100 = Rs.90,000/- instead of Rs.38,250/-. Therefore, additional compensation payable will be Rs.51,750/-. Tribunal found that the claimant was unable to do any work for a period of 12 months. Since we have increased the monthly income by Rs.750/- he is entitled to additional amount of Rs.9000/- for loss of actual earnings. Therefore, additional compensation payable will be Rs.60,750/-. It is contended that compensation granted under other heads are very meager. However, considering the total amount awarded, we are not enhancing the same. Tribunal has awarded 1/3 rd of the disability compensation towards loss of amenities, that is Rs.12,750/-. We are of the opinion that there is no basis for awarding 1/3 rd of the disability MACA.629/2003 5 compensation. However Rs.12,750/- awarded towards loss of amenities needs no enhancement. Hence, the additional amount of Rs.60,750/- 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. On deposit of the amount, appellant 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.629 OF 2003 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 16th October, 2008