IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 621 of 2003()
1. SANAL KUMAR, S/O. CHELLAPPAN,
... Petitioner
Vs
1. PROPRIETOR,
... Respondent
2. UNNIKRISHNAN, S/O. RAGHAVAN PILLAI,
3. THE ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.J.HARIKUMAR
For Respondent :SRI.JOSEPH KODIANTHARA
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :11/06/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.A.C.A.NO.621 OF 2003 (B)
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Dated this the 11th day of June, 2008
J U D G M E N T
KOSHY,J.
Petitioner, at the age of 31, sustained injuries in a motor
accident on 8.11.1998. He claimed a compensation of
Rs.5 lakhs. Tribunal awarded only Rs.1,69,600/- inclusive of
reimbursement of medical expenses actually incurred.
Tribunal found that accident occurred due to the negligence of
the vehicle insured by the 3rd respondent Insurance company.
Only quantum of compensation is disputed in this appeal.
2. According to the claimant, his monthly income was
Rs.7,500/- as he was the proprietor of the business in soft
drinks and soda. He produced application for registration of
Small Scale Industry etc. to prove the same. He also adduced
oral evidence. But in the absence of clear evidence to show
the actual income, tribunal has taken only Rs.2,000/- as the
monthly income. We are of the view that he was maintaining a
MACA.621/03 2
family and even a manual worker will get more than Rs.125/-
per day in 1998. Considering all these aspects, we fix
Rs.3,000/- as the monthly income. As far as the injuries are
concerned, tribunal found as follows:
“It is proved by the above medical records that
in the accident petitioner sustained lacerated
injury left temperal region 10 cm long bone
deep, cerebral odema, subarchinoid
hemorrhage, contusion right frontal lobe near
orbital roof, contusion right temperal lobe,
fracture to left parietal bone, fracture of left
temperal bone on seuamus part and in the
region of mastoid air cells, encyphalo malasia
of the right temperal region, left sided
hemi plegia with facial plasi left. He was
admitted in the Medical College on 8.11.1998,
wound sutured, tracheotomy done and
discharged on 24.12.1998. Thereafter several
times he attended the OP department of the
Medical College Hospital with complaint of
left side weakness and underwent treatment.”
Ext.A4 certificate shows that his permanent partial disability
was 30%. But tribunal, without any reason, reduced it to
20%. According to the claimant, because of the after effects
of injuries, he is unable to do any work. We have referred
the claimant to the Medical Board constituted under the
Government Medical College Hospital, Thiruvananthapuram.
Medical Board assessed the permanent disability at 30%. So
MACA.621/03 3
compensation should be calculated for 30% permanent
disability. Tribunal has fixed 17 as the multiplier. Since he
was aged 31, considering the 2nd Schedule as the guideline,
we see no ground to enhance the same. Apex Court in the
following decisions held that 2nd Schedule can be taken as a
guideline for assessing compensation for claims under Section
166 also (See Smt.Supe Dei and others v. M/s National
Insurance Co. Ltd. and another (JT 2002 (Suppl.1) SC
451), Abati Bezbaruah v. Dy. Director General,
Geological Survey of India and another ((2003) 3 SCC
148) and APSRTC v. M.Pentaiah Charg (2007 AIR SCW
5689)). Therefore, compensation payable for permanent
disability will be Rs.3,000 x 12 x30/100 x 17 = Rs.1,83,600/-.
Tribunal has awarded only Rs.81,600/- for disability and loss
of earning capacity. Therefore, additional compensation will
be Rs.1,02,000/-. Tribunal has awarded Rs.6,000/- for loss of
actual earning for three months under treatment. Since we
have enhanced the monthly income from Rs.2,000/- to
Rs.3,000/-, he is entitled to additional Rs.3,000/- on that
ground. Even though it is contended that compensation
granted under other heads are very low considering the total
amount, no enhancement is required. The additional amount
MACA.621/03 4
of Rs.1,0,5000/- 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. 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. OF 2006 ()
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J U D G M E N T
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26th May, 2008