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 12TH AUGUST 2008 / 21ST SRAVANA 1930 MACA.No. 413 of 2005 ------------------------------------ OPMV.770/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: MAJOR N.Y.GEORGE, S/O. YOHANNAN, NALIET HOUSE, THOKKILANGADI, NIRMALAGIRI, P.O.KUTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.K.V.SOHAN SRI.JOYAN P. ANTONY SMT.SREEJA SOHAN.K. SMT.K.AMBILY RESPONDENTS/RESPONDENTS: 1. P.M.RAGHAVAN NAMBIAR S/O. GOVINDAN NAMBIAR, THAZHE VEEDU, THLLANKERI, THALASSERY TALUK, KANNUR DIST. 2. ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KANNUR. 3. KALIKKODEN BABURAJAN S/O. KUNHIKANNAN NAMBIAR, PALAPARAMBATH VEEDU, MUZHAKKUNNU AMSOM, PULU DESOM, THILLANKERI, THALASSERY, KANNUR DISTRICT. 4. M.P.VIJAYARAJ, S/O. RAMAN, KANDATHIL HOUSE, P.O.MOUVANCHERRY, KANNUR DISTRICT. 5. THE NEW INDIA ASSURANCE CO.LTD., REP.BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KANNUR. 6. NANDORA PUTHANPURAYIL MUJEEB RAHMAN, S/O. ABDUL RAHMAN, KANDAMKUNNU AMSOM, NEERVELI DESOM, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE FOR R4 SRI.JOY GEORGE FOR R5 SMT.PRAICY JOSEPH FOR R5 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.413 of 2005 --------------------------------- JUDGMENT Koshy, J. The appellant/claimant sustained serious injuries in a road accident. He claimed a total amount of Rupees twelve lakhs as compensation alleging that accident occurred due to the negligence of the third respondent, driver of the vehicle owned by the first respondent and insured by the second respondent Insurance Company. The Tribunal found that accident occurred due to the negligence of the third respondent, the driver of the offending vehicle. But, only a total amount of Rs.2,69,016/- was awarded, inclusive of actual medical expenses and actual loss of earnings suffered due to the accident. the only dispute is regarding the quantum of compensation. 2. The claimant, at the time of accident, was 37 years old. He was a Major in the Indian Army. MACA 413/05 2 The Tribunal correctly did not award compensation on multiplier method, as he did not lose his employment, though there was loss of promotional opportunities as seen from the records produced before the Tribunal. Therefore, for loss of earning power due to stoppage of promotional avenues and disabilities, Rupees one lakh was awarded. It is contended that even though he has spent more than Rs.50,000/- for medical expenses, only the expenses as reflected in the medical bills were reimbursed. Exhibit A25 is the wound certificate issued from the General Hospital, Thalassery. It shows that he had the following injuries: “(1) Fracture of right scalp temporal region, (2) fracture of postero-lateral wall of right orbit, (3) fluid collection in the sphenoid sinus, (4) comminuted intra-articular fracture of lower end of radius with displacement with radial nerve injury and (5) fracture of base of 5th metacarpel right.” MACA 413/05 3 3. After the accident, he was admitted in the National Hospital, Calicut. From there, he was taken to Baby Memorial Hospital, Calicut for expert treatment. For about 98 days he was in the hospital. Several Operations were conducted and steel implantations were made. Since he was an inpatient for about 98 days, four months wages was given as compensation for actual loss of earnings. His monthly income, at the time of accident, was Rs.22,504/-. The Tribunal noticed that after the accident, he was getting regular increments. But, the fact remains that at the age of 37, he was getting a salary of Rs.22,504/- per month. The case of the appellant/petitioner is that but for the accident, there was every chance of his becoming a Major General and the salary at the time of retirement would be ten times more than he was getting. The records produced will show that normal promotions will be based on the physical condition categorised as Shape I. After the accident, he was categorised as Shape IV. MACA 413/05 4 Thereafter, he was examined on three occasions and finally he was categorised as Shape III. Because of this, he will not be entitled to normal higher promotions. But, in 2000, considering the number of years served by him, he was given grade promotion only as Lieutenant Colonel (on time scale) on humanitarian ground. It is stated that only because of low categorisation, he was not given any further promotion. His junior officers were promoted as Colonels or Major Generals. He had to retire as Lieutenant Colonel. If he had continued in service, he will get the minimum promotion of Major General and there was every chance of promoting him as Lieutenant General. If the accident would not have occurred, he would have become Lieutenant Colonel in 1996 (on time scale) itself, but due to low categorisation, he was promoted as Lieutenant Colonel only in the year 2000 and he retired as Lieutenant Colonel. According to him, he lost his four years service as Lieutenant Colonel. He has also stated that if he MACA 413/05 5 was promoted as Lieutenant General, he would have continued till the age of 62. But, he had to retire at the age of 58 as Lieutenant Colonel. Therefore, for loss of earning power due to loss of promotional avenues, he claimed an amount of Rupees eleven lakhs as compensation. But, the Tribunal awarded only Rupees one lakh. He has also stated that if he was promoted in 1996 in the normal course as Lieutenant Colonel, his monthly salary (Basic + DA) would have been higher and there will be a salary margin of Rs.4,000/- per month, even without taking into account the various wage revisions, etc. and the retiral benefits will depend upon the last pay received by him. 4. It is true that if compensation is granted on multiplier method, compensation will be very high. Since he continued his employment, the Tribunal did not grant compensation on multiplier method. But, considering the loss of promotional chances, which was sufficiently proved by producing various records like Exhibits A10, A19, A22, A23, MACA 413/05 6 A24, A26, A331 and A32, the medical reports and various certificates from the Military regarding promotions, enhance of retirement age, etc., we are of the opinion that he should be awarded Rupees one lakh more than that is awarded by the Tribunal. The above amount of Rupees one lakh should be deposited by the second respondent Insurance Company with 7.5% interest from the date of application till its deposit over and above the compensation awarded by the Tribunal. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is, thus, partly allowed. (J.B.Koshy, Judge) 12th August, 2008 (K.P.Balachandran, Judge) tkv