IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No. 65 of 2006() --------------------- OPMV.712/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER IN OP(MV): ------------------------------------------------------- JOHNY E.D., S/O. DEVASSYKUTTY, EDATHURUTHIKKARAN HOUSE, AZAD ROAD, IRINJALAKUDA. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS 1 TO 3 IN OP(MV): ------------------------------------------------------------------------------- 1. MERCY JOSE, KUNAN HOUSE, P.O. ERAVU, THRISSUR. 2. SHIJU, S/O. GOPALAN, KOCHERY HOUSE, THOMMANA DESOM, KADUPPASSERY VILLAGE, THRISSUR DISTRICT. 3. MANAGER, UNITED INDIA INSURANCE COMPANY, BRANCH OFFICE, KURUPAM ROAD, THRISSUR. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.65 OF 2006 () ----------------------------------- Dated this the 28th day of October, 2008 J U D G M E N T KOSHY,J. Heard both sides. Appellant/Claimant sustained injuries, at the age of 33, in a motor accident on 21.3.1997. He applied for compensation alleging negligence on the driver of the vehicle insured by the 3rd respondent Insurance company. Tribunal though found the negligence as alleged, only awarded a total compensation of Rs.84,595/- inclusive of reimbursement of actual medical bills amounting to more than Rs.20,000/-. With regard to the injuries concerned, Ext.A1 is the disability certificate issued by an Orthopaedic Specialist. He assessed 18% permanent disability. The Doctor was examined as PW1. PW1 deposed that the appellant sustained 18% permanent disability. It is stated in Ext.A1 that the appellant has MACA.65/06 2 difficulty such as: “to impart weight to right ankle and forefoot, to walk properly due to pain of secondary osteo arthritis and parasthesia, to squat properly, to climb and getting down steps, to do manual labour, for cycling, to drive any sort of vehicles for brisk walking to take quick steps, to sprint to run and to jump, for prolonged standing and prolonged walking.” The Doctor assessed the disability at 18%. However, Tribunal fixed only 8% disability. Appellant was employed in Saudi Arabia. Ext.A10 is the passport and Ext.A13 is the salary certificate issued from the Saudi Arabia employer. That shows that his monthly income was 3,000 SR, which is more than Rs.35,000/- if the exchange value at the date of accident is taken. But for the purpose of calculating compensation, Rs.4,000/- was taken by the Tribunal as the monthly income. Therefore, only Rs.24,480/- was awarded as compensation for disability and loss of earning power. It is come out in evidence that he has gone back to Saudi Arabia and rejoined duty and there is no evidence to show that he lost his employment due to the disability. It is true that he has to suffer the consequences of the disability through out his life. MACA.65/06 3 Since he rejoined duty, we are of the opinion that no interference is required in the compensation for disability and loss of earning power. However, certificate shows that he was under treatment for 31/2 months and only after 31/2 months, he was able to go abroad and rejoin duty. Tribunal, taking Rs.4,000/- as the monthly income, awarded Rs.14,000/- for loss of earnings for the treatment period. It is true that if he was in Saudi Arabia, he would have spend some amount for his boarding and lodging purposes. For calculation of actual loss of earning, we are of the view that atleast Rs.10,000/- ought have been taken as the monthly income and for 31/2 months, it will be Rs.35,000/-, after deducting Rs.14,000/- already granted, he will be entitled to an additional amount of Rs.21,000/-. Even though it is argued that compensation granted under other heads are very meager, considering the circumstances of the case, we are of the opinion that just and reasonable compensation was awarded under other heads. The above additional amount of Rs.21,000/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over MACA.65/06 4 and above the decreed amount by the tribunal. On deposit of the above amount, appellant is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 14th October, 2008