IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 MACA.No. 868 of 2008() ---------------------- OPMV.186/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SIJU.M.S., S/O.SUKUMARAN NAIR, MADATHIPARAMBIL, C.M.C. 15, CHERTHALA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.S.SHYAM PRASANTH RESPONDENT(S): --------------- 1. BALACHANDRAN.P.S., KONDATTU HOUSE, SHM P.O., KOTTAYAM. 2. SHIBU.N.K., S/O.KARUNAKARAN, NIKARTHIL, PATTANAKKAD P.O., CHERTHALA. 3. UNITED INDIA INSURANCE CO.LTD., CHERTHALA BRANCH, REP. BY ITS MANAGER. ADV.SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.868 of 2008 ---------------------------------------- Dated this the 26th day of February 2009 J U D G M E N T BASANT,J There is no representation for the respondent. The claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.2,00,000/- as compensation for personal injuries suffered by him in a motor accident which took place on 26/9/2001. He is a petty officer in the Indian Navy. He was allegedly drawing an amount of Rs.6,500/- as his monthly earnings. He has suffered two fractures - chip fracture of the tibia and fracture shaft of P1 of the left middle finger. He was an in-patient for a period of 15 days. He is alleged to have physical disability to the tune of 14%. He produced Exts.A1 to A13 before the tribunal. No oral evidence was adduced. The tribunal, on an anxious consideration of all the relevant inputs proceeded to pass the impugned award directing payment of an amount of Rs.40,240/- along with interest @ 6% per annum from the date of the petition. The break up of the amounts awarded are given below: M.A.C.A.No.868/08 2 1. Transportation Rs.1,000/- 2. Damage to clothing Rs.250/- 3. Extra nourishment Rs.500/- 4. Bystanders expenses Rs.500/- 5. Treatment expenses Rs.21,500/- 6. Loss of love Rs.1,500/- 7. Pain and suffering Rs.10,000/- 8. Loss amenities in life Rs.5,000/- and enjoyment Total R.40,250/- 2. The appellant claims to be aggrieved by the impugned award. What is the grievance? Called upon to explain the nature of challenge which the learned counsel for the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on the following specific grounds. 3. First of all it is contended that though the salary of the appellant was shown to be Rs.6,500/- per mensum as per Ext.A11 pay slip, the tribunal had awarded only an amount of Rs.1,500/- towards loss of leave though the appellant was an in- M.A.C.A.No.868/08 3 patient in the hospital for a period of 15 days. We are, in these circumstances, satisfied that there must have been loss of leave at least for a period of three weeks and we are in these circumstances in agreement with the learned counsel for the appellant that the quantum of compensation awarded for loss of leave/earnings at Rs.1,500/- is not sufficient. This is so notwithstanding the fact that the specific document to prove the period of leave has not been produced by the appellant. We are satisfied that a total amount of Rs.5,000/- i.e a further amount of Rs.3,500/- can safely be awarded under this head. 3. The appellant had relied on Ext.A10 disability certificate issued by the Orthopaedic Surgeon of Medical College Hospital, Alappuzha that the appellant had the following difficulties/disabilities. “On clinical and radiological evaluation today, I have noticed the following difficulties; 1. There is fixed flexion deformity of 7 degrees at PIP joint of left middle finger and hence grip strength of left hand is weak. 2. 16 cm x 5 cm Skin Grafted area which is hyperpigmented and anaesthetic, over the anterolateral aspect of left leg just below knee. M.A.C.A.No.868/08 4 3. There is 10 degrees limitation of flexion of left knee and the movements of left knee are associated with chronic pain due to secondary osteoarthritis following the accident. 4. Cosmetically disfiguring scar over the anteromedical aspect of left thigh which was the donor site.” 4. The doctor had opined that 14% disability has been suffered; but the doctor has not been examined as a witness. The learned counsel for the appellant contends that it is not a case where the tribunal did not accept the certificate of the doctor; but the tribunal was of the view that there has been no immediate reduction in earnings because of the physical disability suffered and the prospects of promotion in employment is not shown to be affected by the injury/alleged disability. The counsel assails the course adopted by the tribunal of not having awarded any compensation for reduction in earning capacity. The tribunal must have noted that even though there is no present reduction in earnings, more effort will have to be put in to perform the same amount of work which the appellant was otherwise capable of doing. Post retirement prospects would also be adversely affected, contends the counsel. We find merit M.A.C.A.No.868/08 5 in this contention. In the absence of examination of the doctor, looking into the nature of the alleged disability, we are satisfied that it may be safe to conclude that at least 10% reduction in earning capacity consequent to disability must have been suffered by the appellant consequent to the accident/injury. It is reasonable to assume that the appellant would have retired from his present employment at the age of 55 years and would have found prospects of post retirement employment. Thereafter, at least for such a period of post retirement employment, disability will have a reflection on the earning capacity of the appellant and Rs.1,500/- per mensum can be reckoned as the probable monthly income during the post retirement period of re- employment. The appellant is therefore found to be entitled to an amount of Rs.14,400/- (Rs.1,500 x 12 x 8 x 10/100). 5. We do note that the appellant has suffered physical disability which is quantified at 14% under Ext.A10 which has not been directly proved, which we have reckoned to come to a conclusion that 10% reduction in earning capacity must have been resulted. The appellant, a person aged 29 years will have to endure this disability for the rest of his life and that would M.A.C.A.No.868/08 6 certainly have a reflection on the quality of enjoyment of life of the appellant. We are, in these circumstances, satisfied that award of an amount of Rs.5,000/- under the head of loss of amenities of life requires upward modification. We are satisfied that award of an amount of Rs.25,000/- under this head that is Rs.20,000/- more shall serve the interests of justice eminently. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.37,900/- as per the details shown below (in addition to the amounts awarded by the tribunal) 1. Loss of leave Rs.3,500/- more (Rs.5,000/- minus Rs.1,500/-) 2. Reduction in earning capacity Rs.14,400/- (Rs.1,500 x 12 x 8 x 10/100) 3. Loss of amenities Rs.20,000/- more (Rs.25,000/- minus Rs.5,000/-) Total Rs.37,900/- more 7. The learned counsel for the appellant contends that the interest has been awarded only @ 6% per mensum . Relying on precedents, it is contended that interest must have been awarded at least @ 7.5% per annum. We agree with the learned M.A.C.A.No.868/08 7 counsel for the appellant and it is directed that the entire amount of compensation awarded shall bear interest @ 7.5% per annum from the date of the application. 8. This M.A.C.A is accordingly allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.868/08 8 M.A.C.A.No.868/08 9 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009