IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1204 of 2006()
1. NIKHIL.S., (MINOR), S/O.SUNIL KUMAR.N.,
... Petitioner
Vs
1. K.C.THOMAS, S/O.CHANDA PILLAI,
... Respondent
2. N.PREMAKUMAR, S/O.NARAYANA PANICKER,
3. NEW INDIA ASSURANCE CO.LTD.,
For Petitioner :SRI.M.J.THOMAS
For Respondent :SRI.SATHISH NINAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :28/10/2008
O R D E R
J. B. KOSHY &
K. P. BALACHANDRAN, JJ.
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M. A. C. A. No.1204 of 2006
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Dated this the 28th day of October, 2008
JUDGMENT
Koshy, J
Appellant/claimant, a minor, at the age
of 5 sustained head injury in a motor accident
on 13/04/02. He with the help of his father
filed an application for compensation claiming
an amount of Rs.6,41,000/-. The total amount
awarded by the Tribunal was only Rs.2,38,000/-.
Out of which Rs.1,50,000/- was awarded towards
reimbursement of medical expenses proved by
actual bills. Only dispute is regarding
quantum of compensation awarded in this case.
2. Appellant was on ventilation for about
50 days. The Tribunal considered the medical
certificate at para 14 to 17 as follows:-
M. A. C. A. No.1204 of 2006 -2-
“Ext.A4(a) is the wound certificate issued from
Indo American Hospital at Vaikom where petitioner
was referred from Medical College Hospital,
Kottayam. C.T. Scan revealed diffused cerebral
swelling and subarachnoid hemorrhage – left temporal
lobe appeared bit swollen. He underwent left temporal
lobotomy under general anaesthesia. The minor’s
condition improved gradually.
Ext.A5 is discharge card. He remained
hospitalised from 13/04/02 to 03/06/02 for a period of
about 50 days. He was managed with anticonvulsents
and antioedema measures and elective ventilation. Post
operatively an elective tracheostomy was done and
gradually weaned off the ventilator. He had left
hemiparesis which started improving. At the time of
discharge he was advised to undergo physiotherapy
and to continue medicines. He got re-admitted on
04/09/02 and remained hospitalised till 14/09/02 for a
period of 10 days. He was given physiotherapy and his
condition improved. Ext.A5(a) is also discharge
record. He remained hospitalised again from 20/05/04
to 29/05/04 for a period of 9 days. He underwent
physiotherapy and improved Gait pattern.
Ext.A6 is the certificate issued from Indo
American Hospital stating that petitioner continued
treatment for the head injury sustained. Ext.A6(a) is
treatment certificate issued from hospital at
Vandiperiyar regarding physiotherapy given to minor
petitioner.
Ext.A7 is disability certificate. The Medical
Board of the District Hospital, Kottayam certified 20%
disability of temporary character as it has found the
minor was recovering from hemophilia left following
head injury.”
3. The total compensation awarded by the
Tribunal are as follows:-
M. A. C. A. No.1204 of 2006 -3-
(in Rs.)
Medical Expenses as per 1,50,000 Para 21 of
admissible bills the award
Extra nourishment & 5,0000 Para 21 of
attendants charges the award
Transport to hospital 4,000 Para 21 of
the award
Pain and suffering 25,000 Para 22 of
the award
Injuries 20,000 Para 24 of
the award
Disability 50,000 Para 25 of
the award
Loss of employment & 12,000 Para 26 of
amenities in life the award
Shortened expectation in 12,000 Para 27 of
life the award
Future medical expenses 5,000 Para 27 of
the award
TOTAL 2,83,000
4. But due to an accidental mistake,
Tribunal totalled the same to Rs.2,38,000/-
and awarded only the same (see Para 29 of the
decretory portion). Therefore, the claimant is
entitled to an additional amount of
Rs.45,000/-.
5. The Tribunal after seeing Ext.A9
series regarding School Education Progress
M. A. C. A. No.1204 of 2006 -4-
Report of the appellant, also found that there
occurred depression in the educational
progress of the minor. Even though, the
Medical Board certified 20% disability and
Tribunal did not reject the same, compensation
was not awarded on a multiplier method. But
Rs.50,000/- was awarded for the disability
occurred on account of hemophilia caused to
the minor appellant/petitioner and Rs.20,000/-
for the injuries. It is the contention of the
counsel for the appellant/petitioner that the
appellant itself is not normal. His entire
future life is spoiled. The accident occurred
at the age of 5. He is unable to compete with
others because of hemophilia and it is a case
where even though physical disability is 20%,
compensation should be granted for 100%
disability. The Tribunal has granted only
Rs.5,000/- as compensation for extra-
M. A. C. A. No.1204 of 2006 -5-
nourishment and attendants charges. He was in
the hospital for 70 days. He continued his
treatment in his house. There will be many
expenses which are not covered by bills during
his inpatient treatment. He was on inpatient
treatment for many spells. Outpatient
treatment is also continuing. According to the
claimant, even now he is continuing the
treatment. Extra nourishment and bystander’s
assistance are necessary at his young age. He
requires a bystander for six months. We are of
the view that he ought to have been awarded
Rs.20,000/- for bystander’s expenses and extra
nourishment and incidental expenses is to be
paid. Therefore, he is entitled to an
additional amount of Rs.15,000/- under this
head. For loss of studies, no amount was
granted even though at para 19 of the award,
claimant’s progress report and report of his
M. A. C. A. No.1204 of 2006 -6-
twin brother are observed to show that there
is depression in the educational progress of
the claimant. Hence, we award another
Rs.5,000/- for loss of studies and thus, the
appellant is entitled to Rs.20,000/- more. It
is stated that the amount awarded for future
medical expenses etc. are very meagre. But
considering the total compensation awarded, we
are not enhancing the compensation granted
under other heads. Thus, the total additional
amount of Rs.65,000/- (Rs.20,000 + 45,000 –
occurred due to calculation mistake) should be
deposited by the third respondent/Insurance
Company with 9% interest from the date of
application till its deposit over and above
the amount decreed by the Tribunal. Out of the
above, Rs.30,000/- should be paid to the
father of the claimant as he has already spent
huge amount for the medical treatment of
M. A. C. A. No.1204 of 2006 -7-
claimant. The balance amount should be
deposited in a nationalised bank so as to
enable the appellant to withdraw the same when
he becomes major.
6. The appeal is thus, allowed in part.
J. B. KOSHY
JUDGEK.P.BALACHANDRAN,
JUDGE
kns/-