MFA.No. 415 of 2002 & MFA.No. 543 of 2002

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 MFA.No. 415 of 2002() --------------------OPMV.2045/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT: 3RD RESPONDENT --------------------------------------------- THE NEW INDIA ASSURANCE CO.LTD., ETUMANOOR,REPRESENTED BY THE ASSISTANT ADMINISTRATIVE OFFICER OF ITS REGIONAL OFFICE, ERNAKULAM,KONDOMKULATHY TOWERS,M.G.ROAD,KOCHI-11 BY ADV. CRI.A.R.GEORGE RESPONDENTS: CLAIMANT/RESPONDENTS 1,2 & 4 ------------------------------------------------------------------------ 1. M.S.VINODKUMAR,MANOTH HOUSE,EDAVATTOM . P.O.,VAIKOM 2. B.RAMESH,CHIRAYIL PULPARAYIL, KULASEKHARAMANGALAM P.O.,VAIKOM 3. SABU,.S/O.CHANDY,KALARICKAL VEEDU, MEVELOOR P.O.,VAIKOM 4. JOY ALEXANDER,THAZHATHUKAVANADIYIL HOUSE,KALLARA P.O. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.S.ANANTHASUBRAMANIAN SRI.S.SHYAM SRI.LATHEESH SEBASTIAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 4.1.2002, ALONG WITH MFA NO. 543 OF 2002 THE COURT ON 04/01/2008 DELIVERED THE FOLLOWING: Order on C.M.P.No.2308 of 2002 in MFA.415 of 2002: Dismissed Sd/J.B.KOSHY, JUDGE 4.1.2008 Sd/K.HEMA, JUDGE /TRUE COPY/ PA TO JUDGE ## **J.B.KOSHY & K.HEMA,JJ.** **----------------------------------------M.F.A.No. 415 of 2002 & M.F.A.No.543 of 2002 -----------------------------------------** ## **Dated this the 4th day of January, 2008** ## **JUDGMENT** ## **Koshy, J.** Appellant-claimant, while entering a bus, sustained series injuries, as the conductor abruptly rung the bell and the bus moved before he placed both legs in the bus. The bus conductor was charge sheeted as can be seen from Exhibit A4. Against a total claim of compensation for Rs.13,44,500/-, the Tribunal awarded only Rs.7,02,368/-. The Insurance Company filed M.F.A.No.415 of 2002, contending that there is contributory negligence on the part of the claimant. It was also contended that the Tribunal has awarded interest from the date of application, even though the Tribunal, while granting compensation, has taken into account the fact that in future he has to employ a helper and since that is a future requirement, interest should have been awarded from the date of award. 2. The petitioner filed M.F.A.No.543 of 2002 contending that the amount awarded is very low. For loss of earning capacity, no amount was awarded by the Tribunal and for disability, only 2 _**MFA.415 & 543/02**_ Rs.4,00,000/- was awarded after finding that Rs.4,32,000/- was due. It is contended that no amount was awarded for future treatment. With regard to the contributory negligent aspect, as pleaded by the Insurance Company, the charge sheet filed by the police after investigation as well as the evidence adduced would show that while appellant was entering the bus, due to the negligence of the conductor, conductor rung the bell before the appellant placed both legs in the bus and bus started moving. The accident occurred solely due to the negligence of the driver of the bus insured by the third respondent Insurance Company. After going through the documents and the evidence adduced in this case, we fully agree with the findings of the Tribunal in that aspect. 3. With regard to the contentions raised by the claimant, the injuries suffered by the petitioner and consequent disability are detailed in Exhibit A10 certificate issued by Prof.K.Jayakumar, Professor and Head of the Department of Neurosurgery, Medical College, Kottayam, which reads as follows: “Complaints: 1. Loss of control of urine. 2. Erectile dysfunction. 3. Weakness and thinning of both lwoer limbs. Clinical Findings: 1. Incontinenance of urine. 2. Paraplegia. 3 _**MFA.415 & 543/02**_ 3. Pressure Sores. 4. Impotence can be associated with such spinal injury. Inference: 1. He sustained total neurological disconnection of the lower part of the body below T 12 level and thus lost bladder and bowel control and developed paraplegia. These are permanent deficits. 2. He cannot udnertake his job as Bus conductor (as told by him) or any job needing locomotion. 3. He needs the assistance of another person to carry out his day-to-day needs, and personal hygiene. 4. He is always at the risk of urinary infection and pressure sores which can lead to dangerous complications. 5. He may not be able to have a successful intercourse. Considering his age, profession and the above deficits, his disability is one hundred percent and is permanent.” 4. In view of the above certificate, 100% disability assessed cannot be said to be on the high side. He is unable to do anything. He cannot do anything without help of another. Therefore, we are of the view that no interference is required with regard to the percentage of disability found by the Tribunal. The Tribunal has taken 18 as the multiplier as at the time of accident, he was aged 30 years. Considering the second schedule, increase in the life span, decreasing in interest etc., we are of the view that taking second schedule as the guideline, no interference is required in the multiplier fixed by the Tribunal. The Tribunal has taken Rs.2,000/- as 4 _**MFA.415 & 543/02**_ the monthly income. He was a driver-cum-cleaner of another bus by profession. Fixation of Rs.2,000/- as monthly income is not on the high side. But, in the absence of data, we are not increasing the same. We are of the view that after considering that amount, compensation payable was Rs.4,32,000/-, the Tribunal has awarded only Rs.4,00,000/-. Though the petitioner has claimed compensation for the loss of earning capacity, it was not granted. If the amount claimed for disability and loss of earning power is considered together amount claimed was much higher. The Supreme Court held that it is the duty of the Tribunal to grant just and reasonable compensation notwithstanding the fact that only lessor amount was claimed by the claimant (See _**Nagappa v. Gurudayal Singh and others**_ (AIR 2003 SC 674). Therefore, Rs.32,000/- more ought to have been awarded by the Tribunal for disability and loss of earning power. 5. It is contended that for future medical expenses, no amount was awarded. The nature of the injury sustained by the petitioner and the consequential effect show that continued treatment is necessary and compensation for future medical expenses ought to have been granted by the Tribunal. But, at the same time, we are of opinion that for future expense for engaging the bye-stander 5 _**MFA.415 & 543/02**_ should not have been granted with interest from the date of application, but only from the date of award. We are of the view that the excess interest awarded by the Tribunal for that part of the amount can be set apart for future medical expenses. We are of opinion that even though Rs.32,000/- calculated was not awarded for the lack of claim, considering the amount awarded for amenities, no interference is required in the award considering the total amount and interest granted by the Tribunal. Therefore, we are of the view that just and reasonable amount is awarded by the Tribunal, no interference is required in the award passed. Both the appeals are dismissed. ## **J.B.KOSHY, JUDGE** **K.HEMA, JUDGE** vgs. 6 _**MFA.415 & 543/02**_ **J.B.KOSHY & K.HEMA, JJ. -----------------------------M.F.A.No.415 of 2002 & M.F.A.No.543 of 2002 ------------------------------** ## **JUDGMENT** **4.1.2008**