IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1402 of 2001()
1. RASHEED
... Petitioner
Vs
1. N.S.RADHAKRISHNAN
... Respondent
For Petitioner :SRI.P.V.CHANDRA MOHAN
For Respondent :SRI.VPK.PANICKER
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :06/07/2007
O R D E R
J.B. KOSHY & K.P.BALACHANDRAN, JJ.
----------------------------
M.F.A. NO. 1402 of 2001
----------------------------
Dated this the 4th day of July, 2007
JUDGMENT
KOSHY,J.
The appellant filed a petition for
compensation before the Motor Accidents Claims
Tribunal, Irinjalakuda for the injuries sustained
by him on 23.3.1993. On that day, he was riding
his moped through a public road when a jeep owned
by the first respondent and driven by the second
respondent in a rash and negligent manner came from
the opposite direction and hit against the moped
resulting in serious injuries to the appellant
including skull fracture. He was removed to the
Government Hospital, Kodungallur from where he was
referred to the Medical Trust Hospital, Ernakulam
where he underwent treatment as inpatient for 11
days. Even after discharge, he continued the
treatment. On account of the accident, the
appellant sustained serious disabilities including
M.F.A.No.1402/2001 -2-
loss of hearing. He was aged 35 years and
employed in Saudi Arabia drawing a net salary of
Rs.7,500/- after all expenses. Due to the
disabilities, he could not go back to his job and
lost his earning power. A total claim of
Rs.2,50,000/- was made under various heads. The
tribunal found that the accident occurred due to
the negligence of the second respondent driver of
the vehicle insured by the third respondent
insurance company, but, only Rs.17,000/- was
granted as total compensation. Only quantum of
compensation is challenged in this appeal.
2. According to the appellant/petitioner
he was working in Saudi Arabia and the accident
occurred during the leave period and he was not
able to go back to Saudi Arabia due to the
accident. Therefore, he is entitled to 100%
compensation for loss of earning capacity. In the
absence of evidence like employment certificate,
passport etc. tribunal did not accept the
contention that he was employed in Saudi Arabia.
M.F.A.No.1402/2001 -3-
But, tribunal only assessed Rs.1,000/- as monthly
income. Claimant was a 35 year old able bodied man
maintaining a family. Even a non-earning person’s
income is fixed as Rs.15,000/- per year under the
second schedule. Here, since he was an earning
person, we fix his monthly income at Rs.1,500/-.
2. Ext.A2 is the wound certificate which
shows the following injuries:
“1. Lacerated wound 4 x 1 x 1/2
c.m. In the middle of forehead
running vertically.
2. Lacerated wound 2 1/2 x
1/2 c.m. running horizontally in the
middle of forehead.
3. Abrasion on both extremities.
4. Complaint of pain right
shoulder.
5. Depressed fracture middle of
forehead.”
He was referred to a major hospital. Ext.A7 is the
discharge summary from the Medical Trust Hospital,
Ernakulam. The appellant/petitioner was referred
to the Medical Trust Hospital. He had an inpatient
M.F.A.No.1402/2001 -4-
treatment in the Medical Trust Hospital from
23.3.1993 to 3.4.1993 for 11 days in the Medical
Trust Hospital, Ernakulam. Investigations were
conducted. It was found that the
appellant/petitioner had compound depressed
fracture Mid frontal bone. The compound depressed
fracture was elevated. He was discharged with
direction to come up for review after two weeks.
Later, the appellant/petitioner has gone to the
E.N.T. specialist on 15.1.1994. Ext.A8 is a
certificate issued by the E.N.T. specialist,
Thrissur certifying that the appellant complained
giddiness and deafness to the right ear and
headache. He again consulted the doctor on
2.2.1994, 5.5.1994 and 15.4.1994. Medicines were
prescribed for his ailment. Ext.A9 certificate was
issued by the E.N.T. specialist certifying that the
appellant has reckless headache giddiness and lack
of hearing on the right ear following a road
traffic accident in 1993. On examination, the
doctor found out long vertical scar over the centre
M.F.A.No.1402/2001 -5-
of forehead and hearing loss of 40-60 degrees on
the right ear (based on the audiogram). His right
ear drum was perforated. Ext.A9 certificate reads
as follows:
“This is to certify that I have
examined Mr. Rasheed, 38 years, whose
signature is given above. He has
recurrent severe headache, giddiness
and lack of hearing in the right ear,
following a R.T.A. in 1993.
Now, on examination, he has a
long vertical scar over the centre of
forehead and a hearing loss of 40-60
degrees on right ear (based on the
audiogram). His right ear drum is
perforated. The treatment records
show that he had a compound depressed
fracture of mid frontal bone.
After examining him and after
going through his previous charts, I
find that he had a 100% temporary
disability for eight months following
the accident. He has a permanent
disability of twenty five per cent
(25%).”
M.F.A.No.1402/2001 -6-
3. Tribunal did not accept the certificate
as in the wound certificate or in the discharge
certificate from the Medical Trust Hospital it was
not mentioned that there is hearing problem. In
the application filed on 23.7.1973 also hearing
problem was not mentioned. According to the
counsel for the appellant, in view of the depressed
fracture on the forehead, difficulty was felt
subsequently. After initial period was over, this
difficulty was increased. PW2, E.N.T. specialist
was examined. He deposed that the disability is
the consequence of head injury caused in the
accident. In the above circumstances, we are of
the opinion that hearing loss is due to the
consequence of the accident. Tribunal did not
award any compensation for disability or loss of
earning power. Depressed fracture on the forehead
is accepted by the tribunal and even though doctor
certified 25% disability, we take 10% disability
for assessment of compensation. He was aged 35
years at the time of accident. Hence, taking
M.F.A.No.1402/2001 -7-
guidelines from the second schedule, we take 16 as
the multiplier. Then compensation for disability
and loss of earning capacity will be Rs.1500 x 12 x
16 x 10 = Rs.28,800/-. Tribunal has granted
100
Rs.2,000/- as loss of earning for the treatment
period taking Rs.1,000/- as the monthly income.
Considering the treatment and fracture, we are of
the opinion that he will not able to do any work
for three months. Taking Rs.1,500/- as monthly
income for loss of earning, he is entitled to
Rs.4,500/-. After deducting Rs.2,000/- already
granted on this count, balance payable will be
Rs,2,500/-. It was argued that for pain and
suffering only Rs.4,000/- was awarded and
compensation granted in all other heads also were
very meagre. Considering the total compensation
awarded, we are not enhancing the compensation
granted on other heads. The additional
compensation of Rs.31,300/- shall be deposited by
the third respondent insurance company with 7.5%
M.F.A.No.1402/2001 -8-
interest from the date of application till deposit.
On deposit of the compensation, appellant is free
to withdraw the same.
J.B.KOSHY,JUDGE
K.P.BALACHANDRAN, JUDGE
vaa
J.B. KOSHY AND
K.P.BALACHANDRAN, JJ.
————————–
M.F.A. No.1402/2001
————————–
Judgment
Dated:4th July, 2007