IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 MACA.No. 1859 of 2006() ----------------------- O.P.(MV) NO.227/2001 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR. APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- R.MADHULAL, VRINDAVAN, AMBALAKKARA, VALAKOM, UMMANNOOR VILLAGE, KOTTARAKKARA. BY ADV. SRI.JOHN VARGHESE RESPONDENT(S): --------------- 1. GEORGE THOMAS, AYRAKUZHIYIL HOUSE, NEDUMPANA, PATHANAPURAM P.O. 2. SHINIKUMAR, PUTHENVEEDU, PATTAZHI, CHELIKUZHY, PATHANAPURAM P.O. 3. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., PUNALUR. ADV. SRI.K.SHIBILI NAHA FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- M.A.C.A. No. 1859 of 2006 ------------------------------------------------- Dated this the 31st day of October, 2011 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 8/2/99. He was a Petty Officer in the Naval Force aged 30 years at the time of the accident. According to him, he had suffered serious injuries including compound fracture of both bones of right leg at the lower 1/3rd . He was treated initially at the Government Hospital, Adoor. He was referred to the Medical College Hospital, Trivandrum. He continued treatment as an inpatient from 8/2/99 to 3/3/99. He was discharged from the Medical College Hospital and was admitted at the Military Hospital, Pangodu. From there, he was taken to the Command Military Hospital, Pune, where he underwent treatment till 31/5/2000, it is alleged. Subsequently, he was treated at some other hospitals also. He had infected non-union tibia and fibula. M.A.C.A. No. 1859 of 2006 -: 2 :- Ilazarov bone distraction technique was followed. Bone grafting was done. Initial re-constructive surgery was attempted when he was in the Trivandrum Hospital. It is alleged that he had suffered permanent disability as a result of the accident. Medical certificate is relied on to show that he had suffered physical disability to the tune of 40%. Before the Tribunal the claimant/ appellant examined himself as P.W.2. His case was disposed of along with another claim petition by a common award. The Tribunal by the impugned award, against a total claim of `5,00,000/-, awarded only an amount of `38,410/- as per the details given below: Sl.No. Heads Amount awarded 1 Loss of clothing and articles `400/- 2 Transport to hospital `750/- 3 Extra-nourishment `750/- 4 Medical expenses `750/- 5 By-stander's expenses `1,500/- 6 Pain and suffering `5,000/- 7 Dis-figuration ... 8 Permanent disability - Loss of earning power `25,080/- (6 x 4180) 9 Amenities and enjoyment of life .. 10 Further treatment .. 11 Loss of earning `4180/- Total `38,410/- 2. We have heard the learned counsel for the appellant and M.A.C.A. No. 1859 of 2006 -: 3 :- the learned counsel for the insurance company which has been made entirely liable under the impugned award to satisfy the award. The learned counsel for the appellant contends that the Tribunal has not considered the claim in the proper perspective. Even though the appellant was constrained to be involuntarily unemployed for a considerable period of time, the Tribunal has awarded only one month's basic pay as compensation under the head of loss of earnings. The Tribunal, though there was material to suggest that he had suffered permanent partial disability, had not resorted to the multiplier-multiplicand method to ascertain the compensation payable. Six months basic wages is seen awarded globally under the head of permanent disability and loss of earning power. The Tribunal has not endeavoured to ascertain correctly the extent of physical disability and the consequent reduction in earning capacity. The appellant has a case that his employment prospects in the Indian Navy was adversely affected by the injury suffered and the consequent disability. He was allegedly placed on a lower medical category. The learned counsel for the appellant submits that the Tribunal has not considered the claim in the proper perspective. 3. Having heard the learned counsel for the claimant and the insurance company, we are inclined to agree. We may at M.A.C.A. No. 1859 of 2006 -: 4 :- the same time note that proper and authentic evidence about the loss has not been placed before the Tribunal. If, as a matter of fact, the appellant had suffered 40% physical disability as a result of the accident, as indicated in the Medical Board's proceedings, we are certainly of the opinion that the appellant must be granted adequate compensation both under the head of loss of earning power as also under the head of loss of amenities. At the moment and with the available materials, we feel that a just and proper disposal of the claim of the appellant is not possible. 4. We feel that the ideal course in the interest of justice which this Court can now follow is to set aside the impugned award and direct the Tribal to dispose of the claim of the appellant afresh in accordance with law after giving parities opportunities to adduce appropriate and relevant evidence before the Tribunal. We make it clear that it shall be open to the appellant to get himself referred to a Medical Board for competent assessment of the extent of disability/reduction in earning capacity, if any. The appellant shall also be granted an opportunity to adduce evidence about the adverse consequences and the deprivation of the prospects of employment which he suffered as a result of the accident and the consequent alleged disability. We intend only to observe that proper evidence is not M.A.C.A. No. 1859 of 2006 -: 5 :- available before the Tribunal and that the Tribunal has not properly applied its mind to the task of ascertaining the actual loss suffered by the appellant. With the available evidence it appears to be impossible to properly and satisfactorily dispose of the case finally. It is, in these circumstances, that we choose to follow the course of setting aside the impugned order and directing the Tribunal to dispose of the matter afresh. Appropriate further directions can also be issued. 5. In the result (a) This appeal is allowed in part. (b) The impugned award is set aside. (c) The parties are directed to appear before the Tribunal on 15/12/2011. (d) The Tribunal shall dispose of the matter afresh thereafter as expeditiously as possible - at any rate, within a period of 6 months from 15/12/2011. Compliance shall be reported to this Court. (e) Parties shall be at liberty to adduce all further relevant evidence that may be necessary. The option of the appellant to apply to bring in appropriate amendments to the petition shall also remain unfettered. 6. Inasmuch as the insurance company has not preferred M.A.C.A. No. 1859 of 2006 -: 6 :- any appeal, we direct that the amount found to be due under the impugned award, if not already released to the appellant, can be released to him without any liability to return the said amount - whatever be the final decision of the Tribunal. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge M.A.C.A. No. 1859 of 2006 -: 7 :-