IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 MACA.No.248 of 2005 (B) ------------------------------ OPMV.964/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONER ------------------------------ PRABHAKARAN, S/O. LATE BALAN NAIR, EPPURATH MEENAKSHI BHAVAN, KIZHUR VILLAGE, KIZHUR POST, PANAMANNA (VIA), OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT: RESPONDENT NO.2 ---------------------------------------- THE UNITED INDIA INSURANCE CO.LTD., FAIZAL BUILDING, MAIN ROAD, OTTAPPALAM, PALAKKAD DISTRICT. ADV. SRI.P.R.RAMACHANDRA MENON FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.248 of 2005 ------------------------------------------------ Dated this the 23rd day of October, 2008 JUDGMENT Koshy, J Appellant/claimant sustained injuries at the age of 43 in a motor accident. The Tribunal found that the accident occurred due to the negligence of the first respondent/ Driver-cum-Owner of the motor vehicle insured by the second respondent/Insurance Company. A petition was filed claiming an amount of Rs.8,01,420/- for the injuries sustained to the appellant/petitioner. The Tribunal though found that the respondents are jointly and severally liable to pay compensation and there was valid insurance for the offending vehicle at the time of the accident, only awarded Rs.70,000/- with interest at the rate of 6% per annum from the date of application till M. A. C. A. No.248 of 2005 -2- the date of realisation. Only dispute is regarding quantum of compensation. 2. The claimant was a Junior Commissioned Officer in the Indian Army. His monthly income was Rs.11,527/- as per Ext.A4 salary certificate. Ext.A13 salary certificate dt.13/05/2002 shows that his monthly income was Rs.13,584/-. The Tribunal found that he was on annual leave from 26/03/02 to 30/05/02 i.e. for 66 days. The accident occurred on 13/05/2002. He had to avail advance annual leave for 30 days from 31/05/02 to 29/06/02 and 42 days sick leave from 30/07/02 to 13/08/02. The Tribunal awarded a consolidated amount of Rs.15,000/- for loss of actual earnings, since part of the leave period was not on loss of pay, he could have encashed those leave at the time of retirement. His opportunity to take annual leave in the next year was also lost. Therefore, we are of the M. A. C. A. No.248 of 2005 -3- view that the Tribunal ought to have granted at least Rs.30,000/- for actual loss of earnings. Therefore, claimant would be entitled to Rs.15,000/- more on account of actual loss of earnings. 3. After considering Ext.A14 certificate issued by the Central Commanding Signal Regiment, Lucknow, J.C.O can avail service up to 30 years i.e. up to 03/02/08. But appellant as J.C.O being placed in low medical category his service curtailed to 28 years i.e. up to 3rd February, 2006. Therefore, he will lose two years service and other benefits from the military service. He also lost promotional chances as he was placed in a low medical category. He also lost chance of getting a general expectancy as ex-service man due to the disability. He has produced a medical certificate showing 20% disability assessed by the Medical Board of the Military. The M. A. C. A. No.248 of 2005 -4- Tribunal did not rely on 20% disability because in the certificate it is stated that he would be again re-examined for next re- categorisation. Tribunal also noticed that there is no proof before the Tribunal to show that he has to retire after 28 years of service apart from the certificates produced. Taking all these possibilities and considering the fact that he did not lose his job, Tribunal has taken only 3 as the percentage of disability, 15 as the multiplier, only Rs.2,000/- as the monthly income and calculated compensation and the total calculation granted for disability is only Rs.10,800/-. 4. Now we will consider the injury suffered by him in the accident. Ext.A3 is the copy of the wound certificate. As per the above he sustained the following injuries:- M. A. C. A. No.248 of 2005 -5- “Lacerated wound left ankle, multiple abrasion fracture neck, 2, 3 metatarsals, fracture dislocation 4th MTP joint, fracture P1 4th toe, fracture cuboid.” 5. Ext.A6 is the certificate issued by Special Surgeon attached to Army. His certificate is summarised by the Tribunal as follows:- “He certified that c/o pain and swelling Lt. Foot along with difficulty in bearing full weight and reveals that fracture neck 2 & 3 MT, proximal phalanx 4th toe and comminuted fracture cuboid Lt. Foot - healing in progress and in column of remarks it is noted as in view of his multiple fracture and restricted mobility, will require a sheltered appointment and intensive physiotherapy and he recommended that excuse all strenuous duties including PT parade and games, physiotherapy of Lt. Foot and crepe bandage application and medicines prescribed. Petitioner also produced the discharge summary card issued from A1- Shifa Hospital, Perinthalmanna, which shows that the date of admission is 13/05/2002 and the date of discharge is on 21/05/02. In the column of final diagnosis it is noted as displaced fracture neck 2,3 MT (L) with traction, dislocation 4th MTP joint, (L) with comminuted base of P1 4th toe, crushed comminuted cuboid (L) with diastesis at base 4th, 5th toe. In the procedure it is noted as ORIF with 'K' wire, BK slab applied on 13/05/02. Further, it is noted as check x-ray acceptable. The case is seen reviewed on 28/05/02 thereafter on 25/06/02 there it is noted as ROP, fracture united 'K' wires removed and it is also prescribed top crepe bandage and review on 08/07/02, there it is noted as patient is unfit for duty till further orders. On 9/7 walks OK reviewed on 8/8 x-ray acceptable, fracture M. A. C. A. No.248 of 2005 -6- united and review on 10/9, then further therein also directed to continue crepe bandage and light work for 1 month. On 9/12 it is noted came for disability certificate, further, all fractures united and also noted mal-united, cuboid fracture base P1 (L) 4th toe. This discharge summary is seen marked as Ext.A10. Ext.A7 is the Confidential Medical case sheet produced and marked on the side of the petitioner. As per the said document, the entries are seen made on 05/03/03 there it is noted as 44 year old serving, a case of fracture neck of 2nd and 3rd MT and proximal phalanx 4th toe and comminuted fracture (L) cuboid. On examination mild swelling present in the midfoot region, no local tenderness ankle movements are free and full, and also shows that he was placed low medical category A2. The 2nd sheet says that on 28/07/03 the fracture neck 2nd IIIrd metatarsal i.e. Proximal phalanx IV toe/comminuted fracture (L) cuboid. Presently Ext. in cat.A2 for the same since 05/03/03, C/o pain in the affected area, more while walking, Lt foot - mild swelling at the fracture site. There also recommended for continued A2 category. Thereafter the medical board examined him and the percentage of disability is assessed as 20%.” 6. It is very clear from the certificate issued by the Al-Shifa Hospital also that he sustained displaced fracture neck, end and 3rd MT, with comminuted fracture base of P1, 4th toes and crush comminuted cuboid (L). At the time of the accident, he was 43 years old. If the monthly income earned by him at the time M. A. C. A. No.248 of 2005 -7- of the accident is taken, compensation payable for 20% disability will be a huge sum. Further, if he continues for two years more his retirement income based on last drawn salary will be huge. But since his employment was not lost, only two years of employment was lost, we are of the view that compensation cannot be granted on a multiplier method. But it is true that injuries are very serious. He lost the strength to do any other work after his retirement. He has to suffer these difficulties till his death. Even without calculating any amount for future prospects, if only Rs.12,000/- is taken as the monthly income, for 24 months, it will come to Rs.2,80,000/-. We also note that his retiral income will also be reduced because of his early retirement. Hence, we are of the opinion that considering the nature of the injuries, position in life, 20% disability certified by M. A. C. A. No.248 of 2005 -8- the Military Medical Board and circumstances of the case, this is a fit case where Tribunal ought to have awarded at least Rs.2 lakhs as compensation for the permanent disability, loss of earning power etc. Tribunal has awarded only Rs.10,800/- for disability and Rs.6,000/- towards adverse effect of the injury. If that is deducted compensation payable will be Rs.1,83,200/-. It is contended that compensation granted for pain and suffering and on all other heads are very low, but considering the total amount granted we are not enhancing the compensation on those heads. 7. Even though before the Tribunal first respondent owner-cum-driver entered appearance and filed written statement, Insurance Company was contesting the case and insurance coverage was not disputed by the Insurance Company. The Insurance Company was directed to deposit M. A. C. A. No.248 of 2005 -9- compensation by the Tribunal. Thus, the total amount of Rs.1,98,200/- (Rs.1,83,200/- + Rs.15,000/- towards actual loss of earnings) should be deposited by the first 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 amount, the appellant is allowed to withdraw the same. 8. This appeal is thus allowed in part. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-