IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 347 of 2003(B)
1. SREEDHARAN N., KIZHAKEVILA PUTHEN VEEDU,
... Petitioner
Vs
1. V.NAGARAJANPOTI, KAMALA BHAVAN,
... Respondent
2. THE ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.G.P.SHINOD
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :22/09/2008
O R D E R
J. B. KOSHY &
K. P. BALACHANDRAN, JJ.
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M. F. A No.347 of 2003
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Dated this the 22nd day of September, 2008
JUDGMENT
Koshy, J
The appellant at the age of 53 sustained
serious injuries in a motor accident on
22/07/98. He filed a claim petition claiming
Rs.5 lakhs as compensation. Tribunal awarded
only an amount of Rs.1,24,500/- with interest
including reimbursement of medical expenses
after holding that the first respondent
driver-cum-owner of the vehicle was
responsible for the accident. The offending
vehicle was insured by the second respondent/
Insurance Company. Only dispute is regarding
the quantum of compensation.
2. With regard to the injuries, the
Tribunal has referred the injuries in para 8
of the award as follows:-
M. F. A No.347 of 2003 -2-
“As per the medical records, it is proved that
in the accident, the petitioner sustained head
injury, fracture (R) clavicle, IIIrd nerve palsy (R)
side, multiple fractures of bony walls of both
maxillary areas, homosines and soft tissue
swelling (L) orbital region, contusion of brain
parenchyma (R), recurrant attack of giddiness,
infarction (R) superior mid parietal cortical region
and (R) mid superior parietal parasagittal region,
contricular system shows dilatation with cortial
atrophy, contusion (R) parietal and occipital
region, dearness (R) ear and mal united fracture
(R) clavicle. As per Exts.A8 & A9 C.T. Scan
reports, it is noted that the petitioner sustained
fracture of bony walls of both maxillary areas,
fracture (L) zygomatic arch, fracture (R) squamous
temporal bone, fracture (L) frontal bone and
fracture both parietal bones, There is soft tissue
swelling and scalp haematoma over the (R)
tempero parietal region and (L) parieto occipital
region and swelling over (L) orbital region. The
petitioner was admitted in the Medical College
hospital, Thiruvananthapuram on 22/07/98 treated
and discharged on 24/09/98. Thereafter he was
admitted and treated in the Southern Railway
Hospital from 29/01/99 to 11/02/99 and thereafter
from 17/03/99 to 25/03/99. Subsequently, he was
treated in the Government Ayurveda College
Hospital, Thiruvananthapuram as inpatient from
09/03/2000 to 16/05/2000. On 07/08/98, the
petitioner was developed weakness of (L) side.
E.N.T consultation done to him. The petitioner
was treated with figure ‘8’ bandage and audiogram
done to him.”M. F. A No.347 of 2003 -3-
3. The Tribunal found that he is disabled
by 25%. It is the case of the petitioner who
was an employee in Indian Railways that his
services were terminated with effect from
13/04/1999 as he is medically unfit. His
contention is that as he was unable to work,
he is entitled to compensation for 100% loss
of earning capacity. In view of the
contentions so raised, we have referred him
for medical examination by a Medical Board
constituted by the Government Medical College
Hospital, Thiruvananthapuram. The Medical
Board certified that there is 40% disability.
Medical Board certified that the appellant has
the following defects:-
“1. Induced bleed into air sinuses, right
third (N) palsy, mild deafness and severe mental
depression.2. Depressive disorder (severe).”
4. He was examined by a panel of five
expert Doctors. Even though it is contended
M. F. A No.347 of 2003 -4-
that he has 100% disability considering the
nature of injuries, we are of the opinion that
at least compensation ought to have been
granted for 40% disability.
5. Now the question is regarding the
amount he was earning at the time of the
accident. He produced Annexure-A Certificate.
The above is pay slip/pay ticket. It shows
that the total wages for 20/11/97 is
Rs.4,580/-. Out of which Rs.289/- was paid for
house accommodation. In the Pay Slip it is not
stated that the above wages is for a month.
But the above pay ticket as well as Annexure-
A12 shows that he was employed in Southern
Railway. Taking all these aspects, we are of
the opinion that at least Rs.3,000/- can be
taken as the monthly income. The accident
occurred at the age of 53 and the multiplier
applicable is 11 taking guidelines from the
M. F. A No.347 of 2003 -5-
Second Schedule. If that be so, compensation
payable will be Rs.1,58,400/- (Rs.3,000/- x 12
x 40/100 x 11). The Tribunal has awarded only
an amount of Rs.66,000/- taking 11 as the
multiplier and Rs.2,000/- as the monthly
income. Therefore, additional compensation
payable for disability and loss of earning
capacity will be Rs.92,400/-. The Tribunal
found that he was unable to do any work for
five months. Considering the nature of
injuries, Rs.10,000/- was awarded as
compensation. Since we have increased the
monthly income to Rs.3,000/- he is entitled to
Rs.5,000/- more for the actual loss of
earnings during the treatment period. It is
his case that after the accident, he was
continuously on leave and finally his services
were terminated as can be seen from Annexure-A
(a). It is contended that the Tribunal awarded
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only Rs.3,000/- as medical expenses since no
medical bills were produced by the appellant.
Perhaps it may be the reason that he being a
Railway employee, he might have been treated
only in the Railway Hospital and his bills
were already reimbursed. It has been stated
that he was treated about 160 days in Medical
College Hospital, Thiruvananthapuram and
Ayurveda College Hospital, Thiruvananthapuram
apart from the treatment at Southern Railway
Hospital, Chennai. There will be many
incidental expenses incurred by him during the
long inpatient treatment. For bystanders
expenses only Rs.5,000/- was awarded by the
Tribunal. So, for medical and incidental
expenses we award Rs.2,000/- more. Thus, the
appellant is entitled to Rs.99,400/- more than
what is awarded by the Tribunal. The above
amount of Rs.99,400/- should be deposited by
M. F. A No.347 of 2003 -7-
the Second Respondent/Insurance Company with
7.5% interest from the date of application
till its deposit, over and above the amount
decreed by the Tribunal. On deposit of the
same the appellant is allowed to withdraw the
same.
J. B. KOSHY
JUDGEK.P.BALACHANDRAN,
JUDGE
kns/-