IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 MFA.No. 491 of 2003(F) ---------------------- OPMV.1790/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT: PETITIONER: ---------------------------------------- K.SHUJEENDRAN, S/O. KARUNAKARAN, KANDATHIL HOUSE, CHERIYAZHEEKAL P.O., KARUNAGAPPALLY. BY ADV. SRI.V.R.REJITHKUMAR RESPONDENTS: RESPONDENTS: ------------------------------------------------- 1. PEER MUHAMMED S/O. MUHAMMED KHAN, HOUSE NO. 26, PHALAVSI STREET, MEENAKSHIPURAM, NAGERCOVIL. 2. SHEIKH MYTHEEN S/O. HASSAN KHAN, POLICE HOUSE, GANESHAPURAM ROAD, VADEESHWAR VILLAGE, KOTTAR, KANYAKUMARY. 3. THE DIVISION MANAGER, THE ORIENTAL INSURANCE COMPANY, MAALILA MAHAK, 1ST FLOOR, A.P.O. JUNCTION, NAGERCOIL. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.F.A.NO.491 OF 2003 (E) ----------------------------------- Dated this the 4th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/claimant sustained injuries in a motor accident due to the negligence of the driver of the vehicle insured by the 3rd respondent Insurance company. Against a claim of Rs.3 lakhs, compensation awarded was only Rs.60,000/- with interest. Only quantum of compensation is disputed in the appeal. 2. Tribunal has discussed the injuries at paragraph 7 of the award which is as follows: “The petitioner sustained serious injuries in the accident and he was immediately taken to the Government Hospital, Karunagappally. Ext.A6 is the wound certificate issued from that hospital. The following injuries are noted in Ext.A6. MFA.491/03 2 1. 10 x 10 cm lacerated bone deep wound on the upper part of right arm and shoulder with fracture humerous. 2. Lacerated muscle deep wound 5 x 5 cm on the Rt. side forehead. 3. Multiple abrasions around right eye. The petitioner was immediately referred to the Medical College Hospital, and was admitted and treated there as inpatient. Ext.A8 is the referal O.P.card issued from the Medical College Hospital, Thiruvananthapuram. From this record it is seen that the petitioner was admitted on 5.1.1992 and discharged on 18.1.1992. It is further seen from Ext.A8 that the petitioner had compound communited fracture upper end of humerous right side. Wound debridement and internal fixation with rash nail (20 cm x 4 cm) were done and he was put under POP. The case sheet in respect of the petitioner maintained in the Medical College Hospital also is produced and from this record it is seen that on 22.10.1992, the rash nail was removed and at page 10 of this record it is stated as follows:- “S shaped 15 cm long incision over the right shoulder. Deltoid cut at its incersion reflected downwards. Acrominectomy done. Rash nail extraction was done. Release of adductor, internal rotation done. About 900 of abduction obtained. Deltoid sufused back with prolene wound closed in layers after hemortasis”. Ext.A9 is the referal OP card issued from the Medical College Hospital, MFA.491/03 3 Thiruvananthapuram and from this document, it is seen that the petitioner was admitted on 16.10.1992, and discharged on 4.11.1992. It is during the above period that the removal of rash nail was done. The petitioner also stated to have sustained injury to his eye and he was treated at the Opthalmic Hospital. Exts.A10, A11 and A12 are O.P.tickets issued from that hospital in relation to the treatment done to him to his eye. Ext.A13 series are the OP tickets issued from the Medical College Hospital, Thiruvananthapuram dated 28.2.1992 and 3.7.1992 and Ext.A14 is a referal O.P. card issued from the Medical College Hospital, Kottayam dated 31.12.1992. The petitioner as PW1 has deposed that he has become disable to do his work as conductor. He would also state that on account of his disability he was earlier assigned light duty work and now that arrangement has been terminated and so he is unable to work as a conductor. Ext.A15 is a proceedings issued by the Medical Board on 6.8.1993, wherein it is stated that the petitioner had fracture on humeral head which was operated, and on examination by Dr.Cheriyan Thomas, the head of Orthopaedics, Medical College Hospital, Thiruvananthapuram, it was found that he has gross restriction on right shoulder with weakness of muscles and his permanent disability has been assessed at 14% and a change of occupation also was recommended on medical grounds. The said doctor issued another certificate on 5.1.1995 stating that the petitioner is unfit to work as conductor in K.S.R.T.C. on account of his disability and this certificate marked as Ext.A16. The Regional Institute of Opthalmology had issued another certificate dated 5.10.1999, wherein the MFA.491/03 4 ailments on his eye have been stated and it is further noted that the petitioner requires cataract surgery with IOL implantation. RE. The petitioner was given light duty and posted to the store section as per order dated 25.8.1997 which is marked as Ext.A18. But the light duty and other duty arrangements were terminated as per order dated 24.11.1999 which is marked as Ext.A20. The petitioner filed O.P.No.10475/95 before the Hon'ble High Court of Kerala requesting to direct the K.S.R.T.C. to provide light duty for him and the copy of the judgment in that case is marked as Ext.A21. Ext.A22 is an order issued by the K.S.R.T.C. stating that the petitioner can opt for a non-line duty by changing to lower category and in Ext.A22 (a) the petitioner was directed to resume to normal duties with effect from 10.2.2000. Again he was allowed to do light duty work for six months with effect from 10.2.2000 as seen from Ext.A22 (a). Ext.A23 is a proceedings dated 25.1.1995, wherein it is stated that since the petitioner was found to be unfit for the post of conductor, he was directed to apply for voluntarily retirement or invalid pension.” Tribunal also found that by Ext.A23 proceedings, since he was declared unfit, he has to apply for voluntary retirement and he lost the job. He was a conductor in K.S.R.T.C. According to the claimant, he was getting Rs.4,000/- as monthly income at the time of accident. If he continued in employment, his MFA.491/03 5 salary would have been doubled because of the subsequent wage revisions, yearly increments etc. and the retirement benefits he would have been received is much higher on the basis of the last drawn salary and he can go for work after retirement also. Doctor certified 40% disability. He had non united fracture of the right humerous and certain ailment to the right eye. Tribunal has fixed only 8% disability. It is the contention of the appellant that he is entitled to 100% disability as he lost his employment. Tribunal did not accept the certificate as 40% is the occupational disability without any reason. While awarding compensation, occupational disability is the most important aspect to be considered especially because subsequently he lost the opportunity to do light job also because of the injuries. Considering the medical certificate etc., we are of the opinion that tribunal ought to have awarded compensation for 25% disability. He was aged 37 at the time of accident. If he continued in service, he has to retire at the age of 55 and thereby he will get 18 years service more. According to the claimant, 18 should be taken as the multiplier. But taking 2nd schedule as the guideline, 16 MFA.491/03 6 is the apt multiplier. It is true that evidence regarding actual salary was not produced. But he was a conductor in the K.S.R.T.C. His evidence that he was getting Rs.4,000/- was not seriously contradicted and, in any event, future prospects also should be taken into account. In these circumstances, we fix Rs.3,000/- as the monthly income. If that be so, compensation payable for permanent disability will be Rs.3,000 x 12 x 25/100 x 16 = Rs.1,44,000/- instead of Rs.33,500/-. So, additional amount payable will be Rs.1,10,500/-. The certificate issued shows that he was absent from duty from 4.1.1992 to 16.11.1993 and again from 20.10.1994 to 21.4.1997. Tribunal has granted actual loss of earning taking five months only. The above absence is proved by Ext.A19 leave certificate. We are of the opinion that he was absent from duty from 4.1.1992 to 16.11.1993 due to accidental injuries. So, for 10 months loss of earning, he can be granted Rs.30,000/- taking Rs.3,000/- per month as salary. Rs.13,000/- awarded has to be deducted and additional amount payable for actual loss of earning will be Rs.17,000/-. Therefore, additional compensation payable will be MFA.491/03 7 Rs.1,27,500/-. It is contended that compensation awarded for medical expenses, pain and sufferings etc. are very low. However, considering the total amount awarded, we are not enhancing the compensation granted under other heads. The additional amount of Rs.1,27,500/- should be deposited by the 3rd respondent Insurance company with 7% interest from the date of application till its deposit, and, on deposit of the same, appellant is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO.491 OF 2003 (E) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008