IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1183 of 2004()
1. KOOLATH ABDUL MAJEED, AGED 36 YEARS,
... Petitioner
Vs
1. P. ABDUL JALEEL, S/O. P. VEERAN @ BAPPU,
... Respondent
2. K.K. ALI, S/O. MOIDU, R/O. KUTHKALLAM
3. THE UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :SRI.P.R.RAMACHANDRA MENON
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :21/07/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.A.C.A.NO.1183 OF 2004 (G)
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Dated this the 21st day of July, 2008
J U D G M E N T
KOSHY,J.
Appellant in this case sustained injuries in a motor
accident. He claimed a compensation of Rs.10 lakhs.
Tribunal found that accident occurred due to the negligence of
the 1st respondent, driver of the lorry and the lorry was owned
by the 2nd respondent and insured by the 3rd respondent
Insurance company. Tribunal awarded only an amount of
Rs.4,05,920/-. Medical expenses were also awarded by the
tribunal and appeal is filed contending that quantum of
compensation awarded is inadequate.
2. Appellant was aged 30 years at the time of accident.
Tribunal has fixed 17 as the multiplier. As per the
2nd schedule, the multiplier to be fixed for a person between
the age 25 and 30 is 18 and 30 to 35 is 17. Since the tribunal
MACA.1183/04 2
has taken guidelines from the 2nd Schedule in fixing the
multiplier, we are of the view that no enhancement is
necessary in the multiplier fixed by the tribunal. According to
the claimants, he was getting an amount of Rs.4,500/- per
month. He was a painter by profession. He was maintaining a
family. He also stated that he was employed in Art Section of
Cine movies and Tele Films during 1990-95 on contract basis.
He also produced certificate to that effect. But tribunal has
taken Rs.1,800/- as the monthly income. We are of the opinion
that tribunal ought have fixed atleast Rs.2,500/- per month.
Atleast he will get 25 days work in a month and he will get an
amount of Rs.100/- per day as he was an expert painter.
2. With regard to percentage of disability, Ext.A2 is the
copy of the wound certificate relating to the petitioner. He
was referred to Medical College Hospital, Calicut. Thereafter
to Kovai Medical Centre, Coimbatore. The certificates
produced from the Kovai Medical Centre, Coimbatore, shows
that petitioner has sustained D3 laminar fracture, D4 wedge
compression fracture, decompression laminectomay and
MACA.1183/04 3
interpedicular fixation from D2 to D5. Ext.A5 reference card
shows that the petitioner had taken inpatient treatment for 70
days in the St.Mary’s Hospital, Karinkallathani. Ext.A6
disability certificate issued by Kovai Medical Centre shows
that there is 90% physical impairment. That was not
accepted. He was referred to the Medical Board, District
Hospital, Manjeri by the tribunal. Medical Board assessed the
petitioner and by Ext.X1, certified 60% partial permanent
disability. It is also stated that there is total spastic paraplegia
and complaint of urgency of urine and difficult micturition.
Tribunal accepted the above disability certificate and awarded
compensation. It is the contention of the petitioner that
because of the paraplegia, he is still bed ridden and 100% loss
of earing capacity ought have been awarded. Ext.A5 further
shows that this time the petitioner was admitted with huge
bedsore covering the back and both buttocks followed by long
lying and he was treated with daily antibiotics and wound care
twice daily. He was paralysed due to spine injury. Ext.A3 is
the scan report showing the impression fracture collapse and
anterior wedging of D4 vertebra with lateral subluxation at
MACA.1183/04 4
D4-5 level and retropulsed segment seen indenting the dorsal
cord. Even though physical disability was 60% as per the
Medical Board certificate, Medical Board certified that there
was total spastic paraplegia and complaint of urgency of urine
and difficult micturition and due to the para plegia, he cannot
move and he is able to get other diseases. There will be
urination problems also. In this connection, we refer to the
decision of the Apex Court reported in Janardhan v. United
India Insurance Co. Ltd. (2008 (2) KLT 995 (SC)) and
Constitution Bench decision of the Supreme Court in Pratap
Narain Singh Deo v. Srinivas Sabata and another (AIR
1976 SC 222). The physical disability is different from loss
of earning capacity. He cannot do any work. He is bedridden.
He will be a burden for others and for himself. He has to
suffer this disability till his death. Therefore, we are of the
opinion that compensation ought have been awarded for 100%
disability. If that be so, compensation payable will be
Rs.5,10,000/- (Rs.2,500 x 12 x 100/100 x 17). Tribunal has
awarded only Rs.2,20,320/-. Tribunal has also further
awarded Rs.21,600/- towards loss of actual earning. Since we
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have awarded compensation for 100% disability, he need
not be paid any amount and loss of earning awarded
at Rs.21,600/- is to be deducted and the additional
amount payable for disability and loss of earning
power is Rs.2,68,080/-. It is contended that since
compensation is awarded for 100% disability, /3 1 rdis to be
deducted for personal expenses. He has to suffer the after
effects of the injuries through out his life and his personal
expenses cannot be deducted. He has to take food,
wear dress and frequent changing of dress may be
necessary due to urinary problems and bedsore. It is
contended that because of the continuous treatment, he has
to be given special treatment and a bystander through out his
life and Rs.3,000/- is only allowed for bystander expenses. It
is true that he has to engage bystander for his daily
routine. He need a help through out his life. But considering
the total compensation awarded, interest to be given and
we are not enhancing the bystander expenses. We are of
the view that claimant is entitled to Rs.2,68,080/- more
than that is awarded by the tribunal with
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7.5% interest from the date of application till its deposit. Out
of the above amount, appellant is allowed to withdraw
Rs.68,000/-. Balance should be deposited in a Nationalised
Bank for ten years and petitioner is allowed to withdraw half
yearly interest. Appeal is allowed to the above extent.
J.B.KOSHY, JUDGE
P.N.RAVINDRAN, JUDGE
prp
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.F.A.NO. OF 2006 ()
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J U D G M E N T
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26th May, 2008