IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 328 of 2003()
1. SHANAVAS, S/O.AZEEN, RESIDING AT
... Petitioner
Vs
1. P.K.DURAISWAMY, RESIDING AT 72,
... Respondent
2. SELVARAJ, S/O.MUTHUSWAMY, RESIDING AT
3. THE NATIONAL INSURANCE COMPANY LIMITED,
For Petitioner :SRI.V.CHITAMBARESH
For Respondent :SRI.P.JAYASANKAR
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :27/06/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.F.A.NO.328 OF 2003 (B)
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Dated this the 27th day of June, 2008
J U D G M E N T
KOSHY,J.
Appellant/claimant sustained injuries in a motor accident
on 29.12.1997. Total compensation claimed was
Rs.2,00,000/-. Tribunal awarded only an amount of
Rs.1,30,000/- including reimbursement of medical expenses.
He was 25 years old at the time of accident. According to
him, he was a business man earning Rs.3,000/- per month.
But tribunal fixed only Rs.1,500/- as the monthly income.
Considering the evidence and considering the age, we are not
enhancing the monthly income fixed by the tribunal. With
regard to the injuries, tribunal noticed that Ext.A6 wound
certificate and Ext.A7 discharge summary were issued from
the Heart Hospital, Thrissur, which shows that he had the
following injuries:
“1. Brain contusion.
MFA.328/2003 2
2. Brain oedema.
3. Fracture right clavicle.
4. Fracture ribs 6.7,8 on the left side.
5. Cut injury Occipital area
6. Multiple abrasions both feet and shoulders”.
He was treated as inpatient in the Hospital till 1.1.1998. He
was in the Intensive Care Unit also and at the time of
admission, he was semi conscious and disoriented. Ext.A8
Scan report shows his brain injuries. Ext.A9 is the disability
certificate issued by the Neuro Surgeon of the Medical
College Hospital, Thrissur, certifying that the petitioner has
brain oedema and cerebellar trophy. His speech is affected
and has tremor on both hands. He has difficulty to write,
defective walking, climbing up and down, rapidly uncontrolled
movements. This is more on the left side compared to right.
It was also reported that he was fed by relatives with the help
of spoon. The permanent disability assessed was 40%. He
deposed before the court that he cannot recollect from his
memory the incident in detail and there is difficulty in
speaking. He has difficulty to do daily activities such as
eating as the hands will not reach his mouth due to brain
stem injury. But tribunal did not accept the disability
MFA.328/2003 3
certificate merely because the Doctor did not treat him as
PW2, Doctor was examined to prove the certificate. He has
gone through the medical records and also assessed the
disability as on the date of examination and came to the
opinion that the above is permanent. However, tribunal fixed
20% disability on the following reasons as can be seen from
the award:
“He had fracture to the clavicle, deep injury to
the occipital region and had multiple fractures
to the ribs. The brain stem injury was noted
and fluency of speech is lost, he has tremor for
both hands and writing is difficult. He cannot
write on a straight line. However he can sit in
a shop and can do the business. The
percentage of loss of earning capacity for the
purpose of awarding compensation under the
head loss of earning power can be taken as 20.”
We are of the opinion that tribunal went wrong in taking a
lower disability. According to the claimant, he is entitled to
100% loss of earning capacity and he is unable to do any
business or any job. Considering the medical certificate,
atleast 40% ought have been taken as the disability. Tribunal
MFA.328/2003 4
has taken 18 as the multiplier taking into account that he was
25 years at the time of accident. Even though it was
contended that a higher multiplier should be taken, we are of
the opinion that no grounds are stated for fixing a higher
multiplier than that is awarded by the tribunal. If that is so,
he will be entitled to Rs.1,500 x 12 x 40/100 x 18 =
Rs.1,29,600/-. Tribunal has granted Rs.64,800/-. Therefore,
additional compensation comes to Rs.64,800/-. It is submitted
that compensation awarded under other heads are inadequate,
but, considering the amount awarded, we are not enhancing
the same. The additional amount of R.64,800/- 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 above amount, appellant is allowed to withdraw the same.
Appeal is accordingly partly allowed.
J.B.KOSHY, JUDGE
P.N.RAVINDRAN, JUDGE
prp
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.F.A.NO.328 OF 2003 (B)
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J U D G M E N T
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27th June, 2008