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FRANCIS JOSEPH, KOTTARATHIL versus M.KUPPUSWAMY, S/O.K.MUNIYAN

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FRANCIS JOSEPH, KOTTARATHIL v. M.KUPPUSWAMY, S/O.K.MUNIYAN - MFA No. 259 of 2002 [2007] RD-KL 14009 (25 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 259 of 2002()

1. FRANCIS JOSEPH, KOTTARATHIL,
... Petitioner

Vs

1. M.KUPPUSWAMY, S/O.K.MUNIYAN,
... Respondent

2. S.JAGADEESAN, S/O.S.K.SENGOWDA GOUNDER,

3. UNITED INDIA INSURANCE CO.LTD.,

For Petitioner :SRI.MATHEW JOHN (K)

For Respondent : No Appearance

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice K.P.BALACHANDRAN

Dated :25/07/2007

O R D E R

J.B. KOSHY and K.P.BALACHANDRAN, JJ.

M.F.A. No. 259 of 2002

Dated this the 25th day of July, 2007

Judgment

Koshy, J.

A 30 year old businessman sustained serious injuries in a motor accident that occurred on 12.12.1990. He claimed compensation of Rs.6,00,000/=. Tribunal found that the accident occurred due to the negligence of the second respondent driver of the vehicle and the vehicle was owned by the first respondent and insured by the third respondent insurance company. However, against the claim of Rs.6,00,000/=, only Rs.2,67,000/- was allowed as compensation. The finding of negligence, coverage of insurance etc. became final. Only quantum of compensation is disputed in this appeal.

2. First question to be considered is what was the income of the claimant at the time of accident. According to him, he was running a Copra and Oil Extraction mill. In this connection, he relied on Exts.A9, A10 and A11 documents to show that he was M.F.A.No.259/2002 2 licensed to do the business. According to him, his monthly income was Rs.3,000/-, but, no evidence was adduced to show the annual income. Income Tax returns were also not filed. Even though tribunal has stated that petitioner was a businessman making approximately a monthly income of Rs.3,000/=, it did not grant compensation on a multiplier method. No definite finding was entered into by the tribunal. Considering the fact that the accident occurred in 1990 and he was not produced any income tax returns and, at the same time, noticing that he was doing good business, we fix Rs.2,000/= as monthly income. As regards the percentage of disability is concerned, this court ordered the claimant to be examined by a medical board, but, he did not appear before the medical board at Kottayam. Explanation given by the counsel for the appellant was that he was completely bed-ridden and there was nobody to take him to the Medical College Hospital for examination. In the above circumstances, we refer to the findings made by the tribunal as well as the medical records produced and marked in the case. He was examined by Dr.K.M.John, M.S., M.Ch., Neuro Surgeon, Lisie Hospital, Ernakulam, which is a famous hospital. Doctor certified that if M.F.A.No.259/2002 3 individual disability to limbs are concerned, the disability is 269%. The doctor has concluded that the disabilities resulted in impairment of functions limited to 100%. Ext.A15 certificate states as follows:

"Francis aged 30 years is under treatment in this hospital from 14.12.90 onwards as inpatient and as outpatient. He was suffering from head injury and fractures. Impairment of functions is assessed as below.

1. Patient cannot own for self due to dementia : 95%

2. Cannot stand and walk : 65%

3. Cannot carry out self care with upper limbs : 85%

4. Diphopia : 24% Total :269% This impairment of functions is limited to 100% (Hundred per cent)."

3. Now, we will consider the evidence as analysed by the tribunal. At page 16, the tribunal has considered the documents as follows: "Ext.A13 is the wound certificate

issued from the Medical College Hospital, Kottayam. As per this document, the doctor has made the following observations: (R) pupil dilated and (L) constricted. Both sluggishly reacting. M.F.A.No.259/2002 4 Fracture mandible (R). Fracture humerus (L) upper third. Fracture femur (L). Lacerated wound 5 c.m. x 1 c.m. x 2

c.m. below (L) part of lower lip full thickness. Multiple small lacerated wound (L) wrist (R) knee (R) shin upper + medical part (R) chin (R) thumb. From Ext.A13 one can gather the general nature of injuries caused to this petitioner. Ext.A14 is the copy of the discharge summary. As per this document case was referred from M.C.H. Kottayam and the patient was unconscious since the accident. He continued to be unconscious, but decorticate response to pain, pupils right slightly bigger than left. Dissociated eye movement present. Respiration - Chynestokes. Limbs - Spastic Plantar - Bilaterally upgoiuy. Patient has fracture left maxilla, fracture left femu, fracture right humerus. He was seen by the dental surgeon and the Orthopaedic surgeon for the fractures. Patient gradually improved. C.T. At admission within normal limits. Later on patient deteriorated. Repeated scan showed bilateral subdural hydremia. M.F.A.No.259/2002 5 This was evacuated by Burrhole. Patient gradually improved. At the time of discharge patient is conscious, recognises his relatives but does not talk. The details of medication is also seen indicated in this document. Ext.A15 certificate issued from Lisie Hospital, Ernakulam shows the various symptoms noted by the doctor and the disability determined. The disability to various organs and part of the body have been separately noted. The doctor has concluded that the disability mentioned above resulted in impairment of functions limited to 100%. The doctor who issued Ext.A15 has not been examined. However, the document has not been seriously challenged by the respondents." Thereafter, the tribunal at paragraph 35 found as follows:

"Hence, the case of the petitioner that he has been rendered as invalid is to be accepted."

4. Then, the question is what is the multiplier to be used as Apex Court held that instead of arbitrarily making assessment of compensation for loss of earning power and disability, it should be assessed on a scientific method (multiplier method). The second M.F.A.No.259/2002 6 schedule can be adopted as a guideline to find out multiplier, even when cases are filed under section 166. A three member bench of the Supreme Court in Smt.Supe Dei and others v. M/s.National Insurance Company Ltd.and another (JT 2002 (Suppl.1) SC 451), held that the second schedule of the Motor Vehicles Act is framed for the purpose of awarding compensation under section 163-A, but, it serves as a guideline for determination of compensation under section 166 of the Motor Vehicles Act. Since the victim of the accident in that case was aged 32, considering the second schedule, Hon'ble Supreme Court accepted 17 as the multiplier. In United India Insurance Co. Ltd. v. Patricia Jean Mahajan and others (JT 2002 (5) SC 74), the Apex Court held that, except in very rare cases, multiplier system should not be deviated from. The other methods, which were in vogue prior to the introduction of the multiplier system, were held to be no more good system. It was further held that normally the multiplier, as indicated in the second schedule, should be applied. Though the second schedule is found to be a safe guide for the purpose of calculation of the amount of compensation, in special circumstances, it can be varied. In that case, it was M.F.A.No.259/2002 7 also held that if the multiplicand is very high, a lesser multiplier can be taken. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and another ((2003) 3 SCC 148), it was held that structured formula mentioned in the second schedule gives guidelines for determination of the amount of compensation in terms of section 166 of the Motor Vehicles Act. Deviation from the structured formula can be resorted to only in exceptional cases and ordinarily the above multiplier system should be followed. Under the second schedule, 17 is the multiplier fixed for a motor accident victim aged 30 and

35. Taking guidelines from the second schedule, we fix 17 as the multiplier. In this connection, we also note that he is fully bed-ridden. Now, more than 16 years have passed after the accident. Therefore, 17 can be safely used as the multiplier. If that be so, compensation payable for 100% disability will be Rs.2,000 x 12 x 17 = Rs.4,08,000/=. Tribunal has granted Rs.One lakh for continuing permanent disability on a rough and ready basis and Rs.40,000/= for loss of amenities in life. That has to be deducted and balance compensation payable will be Rs.2,68,000/=. M.F.A.No.259/2002 8

5. It was contended that the compensation awarded under other heads are very meagre. For example, actual medical bills amounting to more than Rs.30,000/= were produced as Exts. A16, A17 and A21, but, only Rs.25,000/= was awarded. Considering the disabilities, it is a case where future frequent treatment is required as he is completely bed-ridden. It is also noticed that no amount was granted for bystander's expenses. Since he is completely bed-ridden and requires help for even doing averything including attending the calls of nature. However, considering the total compensation awarded, we are not increasing the compensation under other heads or award compensation for bystander's expenses and for future treatment. Hence, the additional compensation now awarded, that is, Rs.2,68,000/- should be deposited by the third respondent insurance company with 7% interest from the date of application till its deposit over and above the compensation awarded by the tribunal. Out of the above amount, Rs.60,000/= shall be allowed to be withdrawn immediately by the claimant and balance including the entire interest should be deposited in a nationalised bank for seven years and monthly interest should be given to the claimant so that out of the M.F.A.No.259/2002 9 interest received, he can engage a bystander and can meet other expenses also. J.B.KOSHY

JUDGE

K.P.BALACHANDRAN

JUDGE

vaa M.F.A.No.259/2002 10 J.B. KOSHY AND

K.P.BALACHANDRAN, JJ.

M.F.A.NO.559/2002

JUDGMENT

Dated:25th July, 2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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