IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 MACA.NO. 126 OF 2006() ---------------------------------- OPMV.1497/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANT/APPLICANT ------------------------------------------------------- KRISHNAN NAIR, S/O.BALAN PILLAI, MITHILA HOUSE, KODUNGALLOOR JUNCTION, VATTIYOOR KAVU, THIRUVANANTHAPURAM (DIED). ADDITIONAL APPELLANTS IMPLEADED: --------------------------------------------- 2. SMT. KUMARI RENUKA C.K., W/O. B. KRISHNAN NAIR, AGED 45 YEARS, MIDHILA RAJAMALLI GARDENS, KODUNGANOOR P.O., VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 013. 3. SRIJITHIN K.R., S/O. KRISHNAN NAIR, AGED 20 YEARS, DO. DO. 4. JISHA K.R. AGED 17 YEARS, D/O. KRISHNAN NAIR, DO. DO. 5. SMT.ANANDAVALLI AMMA, AGED 71 YEARS, M/O. KRISHNAN NAIR, DO. DO. ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED APPELLANT AS PER ORDER DATED 28.11.2008 IN I.A. NO.3101 OF 2008 BY ADV. SRI.D.AJITHKUMAR RESPONDENT(S) - RESPONDENTS: -------------------------------------------- 1. S.S.MANI, BHARADWAJ, T.C.27/960, VANCHIYOOR, THIRUVANANTHAPURAM. 2. SAJI THOMAS, S/O.K.T.THOMAS, SAJU NIVAS, MULACODU LANE, ANAYARA, THIRUVANANTHAPURAM. 3. THE BRANCH MANAGER, M/S.NATIONAL INSURANCE COMPANY LTD., BRANCH NO.1, P.B.NO.60, SOUNDARYA BUILDING, M.G.ROAD, THIRUVANANTHAPURAM. ADV. SRI.M.BALAGOVINDAN FOR R1 SRI.M.R.SASITH FOR R1 SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.126 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of November, 2008 J U D G M E N T ---------------------- Koshy, J. Appellant, aged 38 years at the relevant time sustained injuries in a motor vehicle accident. Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent. But against a claim of Rs.6,50,000/-, Tribunal awarded only Rs.2,60,608/- with interest at the rate of 9% from the date of application till realisation. Even though the Doctor certified 20% disability, Tribunal accepted only 15% disability. Appellant was employed in the Water Authority. His employment was not lost. Therefore his loss of earning capacity is not lost during the period of employment. As per Exhibit A15, certificate produced he was on leave for 339 days ( 45 days commuted leave, 104 days earned leave, 41 days half pay leave and 70 days casual leave). Tribunal, considering the fact that he could have used that leave for other purposes, granted entire salary during the period of leave taking basic pay and DA at Rs.8,368/-. With regard to the disability and loss of earning power even after accident he continues in service and his M.A.C.A. No.126 of 2006 -: 2 :- terminal benefits are not affected and he continues to get his salary and pensionary benefits. Therefore taking only Rs.2,000/- as monthly income, 8 as the multiplier and considering the possibility of his getting a job after retirement at the age of 55 years, Rs.28,800/- was granted as compensation for disability. Thus Rs.2,60,608/- was awarded as total compensation with 9% interest which is reasonable except in the case of compensation for pain and suffering. Certificate produced by the appellant would show that for about 12 months he was on leave and was under treatment. There was segmental fracture on the right femur and K-nailing and inter-fragmentary screw and bone grafting were done. Surgical scar was still there. He had to undergo three operations. There was wasting of muscle as well as shortening of right femur by one c.m. Considering the long treatment, surgery, etc., an amount of Rs.25,000/- should have been awarded for pain and suffering. But the Tribunal has awarded only Rs.15,000/-. Therefore the appellant is entitled to get additional compensation of Rs.10,000/- on that count. Resultantly, this appeal is allowed in part. Over and the above amount decreed by the Tribunal, the appellant is allowed to realise a further sum of Rs.10,000/- (Rupees Ten thousand only) with interest at M.A.C.A. No.126 of 2006 -: 3 :- the rate of 7.5% per annum from the date of application till realisation. Third respondent is directed to deposit that amount. On deposit the appellant is permitted to withdraw the same. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv