IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 MACA.No. 1035 of 2005() ----------------------- OPMV.40/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: --------------------------- DR.RAJESH MENON.V.B., M.D., MALATHU HOUSE, THIRUNAKKARA, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): --------------- 1. C.B.MENON, MALATHU HOUSE, THIRUNAKKARA, KOTTAYAM. 2. THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------- M.A.C.A. No.1035 of 2005 ---------------------------------- Dated this the 28th day of August, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. The claimant before the Tribunal is in appeal seeking enhancement of compensation awarded. The appellant is a Post Graduate in Medicine who was working as Physician in a private hospital. He sustained injuries when a Maruti Van driven by his father in which he was travelling, collided with a Lorry parked on the side of the road. He sustained severe abdominal impact with injury and damages to internal organs along with fracture to nasal bone and other injuries. The injury sustained had resulted in non functioning of one of the kidneys, along with functional disabilities of other organs inside the abdomen. Ext.A8 is the Disability certificate issued by the Consultant Surgeon in which the extent of permanent disability is assessed at 41%. Ext.A16 is the disability certificate issued by the Medical Board attached to the Medical College Hospital, Kottayam, which revealed permanent disability as 36%. The monthly salary of the appellant which he was drawing at the time of accident was proved to be Rs.10,690/-. According to the MACA.1035/05-B 2 appellant the accident had affected his bright future in the profession. It is claimed that Doctors of Super Specialty is getting salary upto Rs. 1 lakh per month and Doctors of Post Graduate Degree used to get salary upto Rs.50,000/-. But the appellant is getting only an amount of Rs.14,000/- due to reduction in his efficiency because of the permanent disabilities, is the contention. The Tribunal had granted a lump sum amount of Rs.50,000/- as compensation for permanent disability. But for calculating loss of earning power the Tribunal adopted a peculiar method of multiplying the alleged monthly loss with multiplier of 18. The Tribunal found that the claim with respect to loss of efficiency caused in the accident is Rs.1000/- per month and calculated loss of earning on that basis and allowed Rs.2,16,000/-. The Tribunal awarded a total compensation of Rs.5,10,778/-. 2. Heard the learned counsel for the appellant and Standing Counsel for 2nd respondent/insurance company. The appellant contended that the method adopted by the Tribunal for fixing compensation on account of permanent disability and loss of earning power is highly erroneous and improper. It is contended that the Tribunal should have adopted the usual multiplier method based on the income derived by the claimant at the time of the accident. It is settled through various MACA.1035/05-B 3 decisions of the apex Court that while fixing compensation on account of permanent disability, loss of earning power, etc. the multiplier method based on the present income is the correct procedure to be followed. The approach based on the approximate loss due to diminution in the probable income, is not at all realistic method to be adopted. In the case at hand the disability certificate issued by the Medical Board revealed that the permanent disability is 36%. But the evidence is to the effect that the appellant had continued in employment as a Physician in the very same hospital. Claim of the appellant is that his prospects in the profession was drastically diminished due to the incapacities. It is common knowledge that loss of functioning of one of the kidneys will reduce expectancy of life as well as it will restrain the person from undertaking strenuous exertions. Therefore it is true that the permanent disability would have seriously affected the future prospects of the appellant in his profession. At the same time it cannot be said that there is occupational disability to the extent of 36%. Therefore on a moderate estimate we are inclined to fix the extent of disability at 20%. It is an admitted fact that the income derived by the appellant at the time of accident was Rs.10,690/-. Calculated on this basis the appellant is entitled for compensation under the head of permanent disability and loss of earning power at MACA.1035/05-B 4 Rs.4,61,808/- (10690x12x18x20%). Deducting the amounts granted under the head of permanent disability and loss of earning power, the appellant will be entitled for a sum of Rs.1,95,808/- (461808-216000-50000). 3. The counsel for the appellant contended that the rate of interest at 6% granted by the Tribunal is too inadequate. Considering the fact that the accident occurred during the year 1999 we are inclined to increase the rate of interest from 6% to 7.5%. 4. In the result the appeal is partly allowed enhancing the total compensation of Rs.5,10,778/- awarded by the Tribunal by a further sum of Rs.1,95,808/-. The total compensation including enhancement granted in this appeal will carry interest @ 7.5% per annum from the date of the claim petition till payment. The 2nd respondent/insurance company is directed to make payment of the amount within a period of three months. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb