IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 MACA.No. 1260 of 2004 C ---------------------------------------------- OPMV.3405/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER ----------------------------------------- RADHAKRISHNAN, S/O. NARAYANANKUTTY NAIR, HEMA NIVAS, THEKKETHARA P.O., PAZHAYANNUR, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN SRI.K.N.AJAYAN RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. THE CHAIRMAN, KENDRIYA VIDHYALAYA MANAGING COMMITTEE, PURANATTUKARA, THRISSUR. 2. NARAYANAN KUTTY, S/O. NARAYANAN NAIR, PORAKKOTTU HOUSE, MANAKODY P.O., THRISSUR. 3. NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, KOLLANUR DEVASSY SMARAK BUILDING, ROUND EAST, THRISSUR. ADV. SRI.M.A.GEORGE FOR R3 SMT.DEEPA GEORGE FOR R3 SRI.P.RAMAKRISHNAN FOR R1 SRI.PRATAP ABRAHAM VARGHESE FOR R2 GOVERNMENT PLEADER SRI.K.B.RAMANAND FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.A.C.A.NO.1260 OF 2004 C --------------------------------------------------- Dated this the 17th July, 2009 JUDGMENT K.M. Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. As against the claim for Rs.8,56,000/=, Rs.4,42,500/= is granted. Of the same, Rs.15,000/= is awarded towards medical bills. Rs.1 Lakh is awarded towards loss of salary. According to the appellant, under both these heads, he is entitled to more. Under the head medical expenditure, his claim was for Rs.1,55,571/= and towards loss of salary, he should have been granted Rs.1,01,034/= covered by the Certificate, contends the learned counsel for the appellant. He further points out that only Rs.10,000/= was granted towards loss of amenities and Rs.25,000/= was granted towards pain and suffering and Rs.7,500/= towards bystander expenses. For transportation, he MACA.NO.1260/04C 2 was awarded Rs.10,000/= only, it is contended. The appellant was also awarded a further sum of Rs.50,000/= for continuing permanent disability and another sum of Rs.50,000/= towards loss of earning power. Towards loss of expectation of life, he was granted Rs.10,000/=, for extra-nourishment he was awarded Rs.15,000/= and for disfigurement Rs.10,000/=. 2. Learned counsel for the appellant would point out that the appellant was in hospital for 75 days as an inpatient and he had sixty visits as an out-patient to the hospital. Exts.A1 to A7 are discharge summaries indicating the number of times that the appellant was hospitalised. Ext.A11 is a Medical Certificate and Ext.A12 is the Disability Certificate. Exts.A20 series are medical bills and Ext.A21 are the medical prescriptions. The appellant examined himself as PW1. Learned counsel for the appellant would rely on a Full Bench decision of this Court in Oriental Insurance Co. Ltd. v. Hariprasad (2005 (4) KLT 977). He refers to paragraphs 28 and 29. They read as follows: “28. The loss of earning capacity does not come within the category of pecuniary damage in MACA.NO.1260/04C 3 its broad sense. It is directly attributable to the injury and the extent of the irretrievable damage suffered. As the first step, therefore, items coming within the broad head for determining compensation for permanent disability are to be individually examined. Extent of loss of earning power is one of the ingredients. The sequence, if scrupulously followed, would avoid any confusion. Determination of loss of earning power does not prevent the Tribunal from further proceeding with its duty of assessing compensation for permanent disablement. But, after adjudging quantum of compensation for the permanent disablement suffered, a fresh expedition therefore for fixing loss of earning power is not called for. 29. Resultantly, we find that (1) Loss of earning power is one of the consequences that follows from a permanent disability; (2) Permanent disability is a physical impairment which results in distinct personal, social and financial consequences to be classified as one head requiring compensation to be worked out as one entitling for non-pecuniary damages; (3) An MACA.NO.1260/04C 4 injured, who sustained a disability is entitled to claim compensation under the head “permanent disability”. If the resultant deprivation is categorized and claim is made under separate heads and compensation is awarded under the above heads, over and above the same, for the deprivation suffered compensation is not to be granted under the general head “permanent disability”; (4) all the eventualities that may surface on account of a disability, which deserve to be compensated may not be possible to be catalogued and essentially the Tribunal has to determine the claim bearing in mind the statutory mandate that what is payable is a just compensation; and (5) While awarding compensation under the head “permanent disability”, the Tribunal should take notice of the loss of earning power, in each individual case, in case a claim is made as one of the contributory to the total packet of compensation and shall not take into consideration the loss of earning power as a separate head after fixation of compensation for permanent disability.” MACA.NO.1260/04C 5 3. Learned counsel appearing on behalf of the third respondent Insurance Company would, on the other hand, point out that the tribunal has awarded just compensation. He points out that the claim for loss of salary itself was only for fourteen months and excess amount was awarded. He further points out that as against the claim for Rs.5,000/= towards extra- nourishment, Rs.15,000/= was granted. He points out that usually Rs.5,000/= alone was granted for removal of inplant, but Rs.15,000/= was granted in this case. He further points out that Rs.1 Lakh was awarded towards continuing disability and loss of earning power which cannot be justified. On the one hand, learned counsel for the appellant would contend that the multiplier of 16 should be applied and the disability should be worked out and the appellant would be entitled to nearly Rs.1,20,000/= as compensation. On the other hand, learned counsel for the Insurance Company would contend that the appellant continues to work and draw salary and if at all disability would arise after retirement and he would refer us to MACA.NO.1260/04C 6 the decision of a Division Bench of this Court in MACA.No.711/06 and point out that therein, this Court took only five as the multiplier in a similar case. 4. Learned counsel for the appellant would then point out that even if the appellant may not be entitled to compensation for loss of earning power as such, but there is social and personal dimensions to the matter. He would submit that the appellant suffered handicap which is certified at 25 per cent in this case by the Medical College Hospital, even when he is continuing to work and therefore he should be awarded Rs.1,20,000/= on that basis. He would also submit that, at any rate, at least the income should be taken as Rs.4,000/= because the appellant is highly educated and post-retirement disability is to be considered and he should be compensated appropriately, he contends. 5. The first question to be considered is whether in this case, the appellant is justified in demanding that compensation for disability should be calculated with 16 as the multiplier and MACA.NO.1260/04C 7 adopting the income which he is earning admittedly. It is a fact that the appellant has rejoined duty after the period of nearly 14 months and is continuing to work and receive salary and other benefits. Therefore, it cannot be said that the injuries resulted in a situation where he is disabled from earning income or that there is a loss of earning power. That he may have after effects from the injuries, is a matter which requires our attention under some other head. As long as he continues to earn, he cannot be permitted to raise a claim towards disability or loss of earning power. But, we can take Rs.4,000/= as he contends, as the post- retirement income and if the multiplier of even eight is employed and disability is to be taken without any reduction at 25 per cent, the amount would be Rs.96,000/=. But, the appellant is already awarded Rs.1 Lakh. No doubt, it is true that the appellant can be given Rs.5,590/= more towards medical bills as claimed by him which is rounded of to Rs.5,600/=. The appellant can also be granted Rs.1,034/= towards loss of salary. We further feel that the appellant can be given a further sum of MACA.NO.1260/04C 8 Rs.10,000/= under the head loss of amenities. Accordingly, the appellant would be entitled to Rs.16,624/=. But, we would have to necessarily factor in excess amount of Rs.4,000/= which the appellant is awarded under the heads of continuing disability and loss of earning power. This means the appellant is entitled to Rs.12,624/= which is rounded off to Rs.13,000/=. Accordingly, the Appeal is allowed in part and the appellant is allowed to realise a sum of Rs.13,000/= more with 7.5 per cent interest from the date of the petition till the date of realisation from the third respondent Insurance Company. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge