IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 104 of 2003()
1. SRI.JOY, AGED 32, S/O. CHACKO,
... Petitioner
Vs
1. SRI. M. VENKITACHALAM, AGE NOT KNOWN
... Respondent
2. SRI B. GANESAN, AGE NOT KNOWN,
3. THE ORIENTAL INSURANCE CO.LTD.,
4. SMT. MARIYAMMA, AGE & FATHER'S NAME
5. THE UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SRI.JIJO THOMAS
For Respondent :SRI.M.JACOB MURICKAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :30/07/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
-------------------------------
M.F.A.NO.104 OF 2003 ()
-----------------------------------
Dated this the 30th day of July, 2008
J U D G M E N T
KOSHY,J.
Appellant/petitioner sustained injuries in a motor
accident on 8.2.1995. He claimed an amount of Rs.2 lakhs
contending that accident occurred due to the negligence of
the 2nd respondent, driver of the lorry owned by the
1st respondent and insured by the 3rd respondent Insurance
company. He was travelling in a mini lorry with his
merchandise and the above lorry was hit by the lorry driven by
the 2nd respondent. Tribunal found that 2nd respondent was
guilty of negligence and 1st respondent has got vicarious
liability and there was valid insurance policy issued by the
3rd respondent Insurance company. Only dispute is regarding
the quantum of compensation as the amount awarded by the
tribunal was only Rs.83,350/-.
2. According to the appellant, he was aged 25 and he
contended that maximum multiplier of 18 should be taken for
MFA.104/03 2
calculating compensation. In one of the medical certificates,
his age was mentioned as 35. Therefore, tribunal has taken
his age between 30 and 35 even though in all other medical
certificates, the age was mentioned as 25. In any event,
tribunal has taken 17 as the multiplier. We see no ground to
enhance the multiplier fixed by the tribunal. According to
him, he was a whole sale merchant in vegetable products. He
was travelling with the goods from Tamil Nadu. When the
accident occurred his income was Rs.5,000/- per month. No
evidence was adduced to prove his income. We are of the
opinion that even if he get only Rs.100/- per day as profit from
his business, Rs.2,500/- can be taken as the monthly income.
Therefore, we fix Rs.2,500/- as the monthly income instead of
Rs.1,500/- fixed by the tribunal. With regard to the injuries
concerned, Ext.A3 is the wound certificate. It shows that
there was contused laceration in the occipital region,
contusion in the cerebral region, multiple abrasion on both
legs and arm and bifrontal subdural afusion and intracerebral
haemorrhage. He was inpatient in the hospital for a month.
Ext.A15 scan report shows that there were multiple small
haemorrhage contusion mild subarachnoid haemorrhagic and
MFA.104/03 3
thin bifrontal hygromas and C.T. scan report of 8.5.1996
shows that there were mild changes of bilateral cortical
atrophy. Doctor certified 28% disability. It is mentioned in
Ext.A17 certificate and PW2, doctor was examined to prove
the above. He noticed the loss of smell of both nostrils. He
also noticed that he is still suffering from epilepsy. There
were post traumatic head ache, behavioral change, easily
getting angry, loss of memory and failure to recognise
relatives and friends. Even though these disabilities were
accepted, tribunal assessed only 10% disability. No reason
was stated in not accepting the disability certificate issued by
the Doctor, which was proved by examining the Doctor.
As far as a young man is concerned, loss of memory and
failure to recognise his friends and relatives is a very serious
disability. It was contended by the claimant that he has
actually lost 100% disability. We are of the view that tribunal
ought have awarded atleast 28% disability as assessed by the
Doctor. If that be so, compensation payable will be Rs.2,500 x
12 x 28/100 x 17 = Rs.1,42,800/-. Tribunal has awarded an
amount of Rs.30,600/-. Therefore, he is entitled to additional
amount of Rs.1,12,200/-. Tribunal found that he was unable
MFA.104/03 4
to do any work for three months and Rs.4,500/- was awarded
taking Rs.1,500/- as the monthly income. Since we have
enhanced the monthly income to Rs.2,500/-, he will be
entitled to Rs.3,000/- more on that ground. Therefore,
additional amount payable will be Rs.1,15,200/-. It is
contended that compensation awarded for pain and sufferings
and other heads are inadequate. But considering the total
amount awarded, we are not enhancing the same. Therefore,
additional amount of Rs.1,15,200/- should be deposited by the
3rd respondent Insurance company with 7% 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 Rs.25,000/- and balance should be
deposited in a nationalised bank for five years enabling the
appellant to withdraw quarterly interest. Appeal is
accordingly partly allowed.
J.B.KOSHY, JUDGE
P.N.RAVINDRAN, JUDGE
prp
J.B.KOSHY & P.N.RAVINDRAN, JJ.
——————————————————–
M.F.A.NO.104 OF 2003 ()
———————————————————
J U D G M E N T
———————————————————
30th July, 2008