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 24TH JULY 2009 / 2ND SRAVANA 1931 MACA.No. 140 of 2009 & CROSS OBJECTION No.31 of 2009 ---------------------------------------------------------------------------------- (AGAINST THE AWARD DATED 28.2.2007 IN OPMV.640/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ) .................... APPELLANT(S): 2RD & 3RD RESPONDENTS -------------------------------------------------------------- UNITED INDIA INSURANCE COMPANY LTD, REP.BY ITS ASST.MANAGER,REGIONAL OFFICE, SHARANYA,HOSPITAL ROAD,KOCHI-11. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): CLAIMANT & IST RESPONDENT ----------------------------------------------------------------------- 1. K.S.SUBASH, S/O.K.SREEDHARAN, AGED ABOUT 46 YEARS,RESIDING AT KATAVIL HOUSE,CANAL ROAD, PARAVUR TALUK, NORTH PARAVUR, PIN-683513. 2. JOSEPH ANTONY.T.P.@ SHAJI, THACHUTHARA HOUSE, HOUSE NO.844,VADUTHALA, KOCHI-23, CHERANELLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. R1 BY ADV. SRI.K.S.BABU & SMT.N.SUDHA. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.140 of 2009 & Cross Objection No.31 of 2009 ---------------------------------------------- Dated, this the 24th day of July, 2009 J U D G M E N T K.M.Joseph, J. Appellant is the second respondent in a petition filed under Section 166 of the Motor Vehicles Act filed by the Ist respondent herein. The Ist respondent claimed Rs.9,64,333/- on account of injuries. The Tribunal has awarded Rs.6,73,815/-. The break up given is as follows: Compensation for disability : Rs.1,81,440 Loss of earning capacity : Rs.1,50,000 Pain and sufferings : Rs. 40,000 Transport to hospital : Rs. 2,000 Extra nourishment,bystander: Rs. 2,600 Loss of earning for 6 months : Rs. 54,000 Loss of amenities : Rs. 25,000 Medical expenses : Rs. 1,03,075 Future medical expenses : Rs. 1,00,000 Compensation for damages to scooter. : 15,700 --------------- Total 6,73,815 ---------------- 2. The Tribunal has already ordered 9 percent interest from the date of the petition till date of realisation. MACA NO.140/2009 -2- There is also a cross objection filed by the Ist respondent. 3. We heard the learned counsel for the appellant and learned counsel for the Ist respondent. 4. Learned counsel for the appellant would contend that the Tribunal having awarded Rs.1,81,000/- towards disability compensation has clearly erred in awarding Rs.1,50,000/- towards loss of earning capacity. She points out the matter is squarely covered in favour of the appellant by virtue of the Full Bench decision in Oriental Insurance Co.Ltd v. Hariprasad (2005 (4) KLT 977). She would also submit that the interest rate is little high. 5. Smt.Sudha, learned counsel for the Ist respondent submits that there is merit in the cross objection. She would point out that this is a case where having regard to the injuries and future treatment required the amount of Rs.1 lakh awarded by the Tribunal is on the lower side. Learned counsel point out that there was an operation in 1999. But, he could not produce any evidence in support of the same. She read out A7 and A8 certificates. The Tribunal has, as we have already noticed, awarded Rs.1,03,075/- MACA NO.140/2009 -3- towards medical bills and Rs.1 lakh towards future medical bills. In A8 it is stated as follows: “This is to certify that Mr.K.S.Subash was admitted here on 18.09.98 following an alleged road traffic accident. He was diagnosed to have fracture of his right acetabulum. He was initially treated with skeletal traction and on 29.09.98 he underwent open reduction and internal fixation of the acetabulum. Though he had an uneventful post op period and was discharged ambulant non weight bearing on crutches, he continued to have pain in the right hip and on review in August 1999, he seems to have low grade infection with implant loosening diagnosed by isotope bone scan. He is now on antibiotic treatment. In view of the progressive nature of the acetabulum lesion, he is likely to require a total hip replacement after a year. This will cost approximately Rs.75,000/- . Being less than 40 years of age, it is likely that replaced hip will require a revision at about 15 years from the time of initial operation.” 6. As far as A7 is concerned it is dated 28.1.2005. It is issued by Orthopedic Surgeon. He refer to MACA NO.140/2009 -4- the earlier treatment given from 1998 onwards. He further refers to the removal of the plate fixation on 24.12.1999. The learned counsel for the Ist respondent would rely on this statement and point out that no amount is awarded for treatment in December, 1999. She also points out that future treatment may be required after 15 years. In A8 actually it is stated that approximately Rs.75,000/- is required for replacement. It is to be done after a period of one year. A8 is dated 17th August, 1999. No doubt, it is stated that it is likely that the replaced hip will require a revision after 15 years. 7. We have to notice one facet in this case. The claimant was working as Assistant Engineeer in the Corporation of Cochi. There is not much dispute that the claimant has rejoined duty. If that be so, in calculating disability compensation the compensation should have been awarded only for the post retirement loss. In this case, Rs.1,81,000/- has been awarded towards disability apparently adopting multiplier relevant to age at the time of accident. Even if we take the post retirement income of the respondent MACA NO.140/2009 -5- being an Engineer at Rs.72,000/- per annum on a multiplier of 8 the amount of disability would be about Rs.1,20,000/-. The respondent is already awarded Rs.1,81,000/-. In A8 the cost of future treatment was shown as approximately Rs.75,000/-. Even taking Rs.75,000/- as the cost there would be a surplus of having Rs.25,000/- Therefore, even if the case of the Ist respondent is accepted, the Ist respondent must be treated as being awarded an amount of nearly Rs.85,000/- more. Therefore, there may not be much merit in the contention on the basis of future treatment. We also notice that what is stated is that he might require revision after 15 years. So, it is not certain that this treatment will be needed. At any rate, having regard to the facts of the case, we are not impressed by the learned counsel for the Ist respondent contending that the claimant should have been awarded more amount than Rs.1 lakh towards future medical treatment. 8. Learned counsel for the Ist respondent pointed out that Rs.15,700/-, the amount awarded towards damage to scooter is inadequate. Even if the entire amount is awarded having regard to the amount already awarded under MACA NO.140/2009 -6- disability we are not inclined to award any further amount. The Ist respondent is already awarded Rs.40,000/- towards pain and suffering and Rs.25,000/- towards loss of amenities. In such circumstances, we are constrained to allow the appeal filed by the 2nd respondent in the claim petition and we modify the award by deducting Rs.1,50,000/- from the amount already awarded. The Cross Objection fails and it is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS