IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 MFA.No. 16 of 2002() -------------------- OPMV.1313/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: APPELLANT/PETITIONR: ------------------------------- PREMACHANDRAN, S/O. GOPALAKRISHNA MENON, VELLAPPILLI HOUSE, KAROOR DESOM, LOKAMALESWARAM VILLAGE, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.G.D.PANICKER RESPONDENTS: RESPONDENTS/RESPONDENTS: ------------------------------------- 1. M.I. JAMES, S/O. JACOB, MALIYEKKAL HOUSE, POTTA, CHALAKUDY (OWNER). 2. SUDHI, S/O. SANKARA NARAYANAN, PANIKKAMPARAMBIL HOUSE, UNDEKKADAVU DESOM, METHALA VILLAGE, KODUNGALLUR (DRIVER). 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, P.B.NO.27, MANAPPATT BUILDINGS, NORTH NADA - KODUNGALLUR. BY ADV. SRI.MATHEWS JACOB THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 4.1.2008, THE COURT ON 04/01/2008 DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.16 of 2002 ----------------------------------------- Dated this the 4th day of January, 2008 JUDGMENT Koshy, J. Appellant-petitioner met with an accident on 16.5.1993 due to the negligence of the second respondent driver of the vehicle, owned by the first respondent and insured by the third respondent Insurance Company. The Tribunal awarded a total amount of Rs.22,760/- against a claim of Rs.2,45,000/-. The Tribunal also found that the driver of the vehicle had no valid driving licence and violated the policy conditions. The Tribunal directed the third respondent Insurance Company to deposit the same and recover the same from the insured. 2. This appeal was filed in 2001. Notice sent to first respondent was being evaded. As several notices sent were returned with endorsement, 'not known', notice was sent through the counsel appeared for the first respondent (owner of the vehicle) in the lower court. Counsel appearing for the first respondent before the lower court accepted notice on behalf of the first respondent. Notice sent directly to the first respondent was refused saying that the initial MFA.16/02 2 was different. The notice sent in the same address by the counsel was accepted by him and he engaged a counsel and contested the case. Therefore, we declare service of notice. Any way, respondents 1 and 2 did not file appeal. Therefore, findings against them became final. The Tribunal already held that since the second respondent had no driving licence, the third respondent was entitled to recover the amount from respondents 1 and 2. 3. The appellant was an employee of the Appolo Tyres Limited. As a result of the accident, he suffered split fracture of left lateral tibial condyle with depression of tibial plataue. The disability certificate also shows that bone grafting was done. He was first allowed non weight bearing crutch walking. He was weaned off from crutches. His knee was mobilised all along and found that range of movement was progressing. Yet he continued his knee pain. Exhibit A9 is the certificate issued from the employer showing that after the accident, his grade was lowered and his monthly loss of earning was reduced by Rs.350/-. But, he continued his employment. On 23.5.1995, his total salary was Rs.4,718.95, including basic, fixed dearness allowance, variable dearness allowance etc. According to the petitioner, he was getting Rs.3,100/- at the time of accident. Exhibit A9 series also show that he was on medical leave from 16.5.1993 to 19.12.1993. So, he lost wages for three months. The MFA.16/02 3 Tribunal has awarded Rs.12,260/- for the period of leave taking Rs.2,000/- as the monthly income. We are of opinion that the petitioner's monthly income was more than Rs.3,000/- and for 6 months 13 days he was not in service and he was not getting any wages. The Tribunal has awarded compensation for loss of actual earning taking Rs.2,000/- as the monthly income. The Tribunal ought to have taken Rs.3,000/- as the monthly income. If that be so, the claimant is entitled to get Rs.6,130/- more for loss of earning for the period when he was on leave on loss of pay. The Tribunal found that the accident will have repercussions after his retirement also. Therefore, after his retirement, for disability and loss of earning power, Tribunal awarded Rs.4,000/- as loss of earning power and disability, as he continued in employment. We are of the view that his reduction in salary was Rs.350/- per month. The accident occurred at the age of 38. He had 22 years more service. The reduction of monthly salary due to the reduction of grade will affect calculation of variable D.A also. The Tribunal has also taken 6% disability, even though the disability certificate, issued immediately after the accident, shows that there is 22% disability. Exhibit A8 disability certificate reads as follows: “Patient was brought to this hospital on 16.5.1993 allegedly following a road traffic accident. Clinical and radiological examination revealed a split MFA.16/02 4 fracture of the lateral tibial condyle with depression of tibial plataue. Patient was treated with elevation of the tibial plateaue bone grafting and buttress plating. He was discharged from the hospital on 19.6.'93 and was allowed non weight bearing crutch walking. He was periodically reviewed in the OPD. He was weaned off from crutches in October, 1993. His knee was mobilised all along and found that range of movement was progressing. At present he is found to have restricted range of movement of left knee from 0 degree to 90 degree. He is also found to have pain left knee on prolonged standing. He is assessed to have permanent partial disability of 20% (Twenty percent only).” 4. But, later a certificate was issued by the Orthopaedic Surgeon, Government Hospital, Kodungallur with permanent disability of 12%. That certificate was issued in 2001. For granting compensation for disability, the disability should be permanent. Therefore, Exhibit A11 certificate issued in 2001 can be taken as the basis for fixing the disability which reads as follows: “He was admitted at Modern Hospital, Kodungallur. He had sustained the following injuries: (a) Abrasion radial aspect of left lower limb. (b) Abrasion dorsal aspect of left foot. (c) Haemonthrosis left knee and contusion of lip of left index figure. (d) Split fracture of left lateral tibial condyle with depressin of tibial platue. He was treated by wound case, antibiotics and MFA.16/02 5 other suppressive reasons. Ogyn reduction and internal fixation and bone grafting was done on 24.5.93. Presently he has got complaints of recurrent attacks of pain and swelling of his left knee. He has got difficulty in climbing stairs and standing and waking for prolonged time. On examination, he is noted to have the following: (a) Mild effusion n left knee joint. (b) Wasting of left guadrieps muscles. (c) Scan of surgery done over left leg extending vertifically downwards about 15 cm from knee joint of left side. (d) Flexion of left knee joint limited only to 100 degree extension of left knee joint painful at extreme of angle. (e) Osteoarthritic changes of left knee joint. Based on above findings in my opinion, he has got a permanent partial disability of about 12% (twelve percent only) according to Mc Brides guide lines.” 5. We are of opinion that 12% disability can be taken. But Rs.350/- is the actual loss of earning per month. 16 can be taken as the multiplier, considering the age of the appellant at the time of accident. Therefore, compensation payable for disability and loss of earning capacity will be: 350 x 12 x 16 x 12 = 8,064/-. 100 MFA.16/02 6 The Tribunal did not grant any compensation on this head. Therefore, total additional compensation payable will be Rs.14,194/-. The above amount should be deposited by the third respondent Insurance Company with 7.5% interest from the date of application till the date of deposit. On deposit of the above amount, the appellant is allowed to withdraw the same. The third respondent Insurance Company is allowed to realise the amount from the insured and the driver of the vehicle who are responsible for the accident, as there was violation of policy conditions and driver of the vehicle had no driving licence. The appeal is allowed, partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. MFA.16/02 7 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.16 of 2002 ------------------------------ JUDGMENT 4.1.2008