IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 MACA.No. 865 of 2004() ---------------------- OPMV.2736/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/CLAIM PETITIONER. ----------------------------------------- K.P.PRASAD, S/O.SANKAAN, KUDILIL HOUSE, PALLOM, NATTAKOM, KOTTAYAM. BY ADV. SRI.P.RAVINDRA BABU RESPONDENT(S): RESPONDENTS. -------------------------- 1. HARIDAS, S/O.RAJAPPAN, PUTHUVAL HOUSE, PALLOM P.O., KOTTAYAM. 2. K.K.JOHN, KOORKKAKALAYIL HOUSE, CHINGAVANAM, KOTTAYAM. 3. THE ORIENTAL INSURANCE CO. LTD., KOTTAYAM BRANCH, KOTTAYAM. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 865 of 2004 ------------------------------------------------------ Dated: FEBRUARY 9, 2010 JUDGMENT Basheer, J. The appellant is the claimant before the Motor Accidents Claims Tribunal. He had claimed a total sum of Rs.4 lakhs as compensation under various heads for the injuries sustained by him in a motor accident. The Insurance Company admitted policy coverage in respect of the vehicle which caused the accident. The Tribunal found that the accident occurred because of the rash and negligent driving of respondent No.1, driver of the vehicle. 2. However, the Tribunal while considering the issue whether the claim petition was maintainable in view of the compensation awarded to the appellant under the Employees State Insurance Act took the view that the claim made by the appellant before the Tribunal would be barred in view of the provisions contained under secs.53 and 61 of the Employees State Insurance Act. Accordingly the claim petition was dismissed. 3. Learned counsel for the appellant takes exception to the refusal of the Tribunal to award any compensation to the appellant under the head “ permanent disability”. Learned counsel places reliance on Ext.A16 medical certificate issued by the doctor attached to the Medical College Hospital. It is true that the doctor assessed the M.A.C.A. 865 of 2004 2 permanent disability of the appellant as 23%. The certificate issued by the doctor reveals that there is shortening of his leg by one inch apart from common penoneal nerve paralysis resulting in foot drop and sensory defficit on antero-lateral aspect of leg and dorsum of foot. The doctor further noticed that “ fracture tibia lower 1/3rd” was malunited. 4. The appellant was working as a Laboratory Tester in Travancore Cements Ltd., a public sector undertaking, drawing a monthly remuneration of Rs.5463/- at the time of the accident. It is on record that the appellant had suffered compound comminuted fracture of both bones of left leg and fracture dislocation of left hip with foot drop, apart from several other injuries. He was treated as an inpatient in the Medical College Hospital for about a month. Even after his discharge he had to undergo treatment for quite a long period. Ext.A16 medical certificate issued by the Orthopaedic Surgeon attached to the Medical College Hospital, Kottayam, revealed that the disability of the appellant was assessed at 23%. 5. The Tribunal, after taking note of the serious nature of the injuries and other relevant aspects, came to the conclusion that the appellant will be entitled to get a total sum of Rs.1,18,668/- under various heads, which included Rs.50,167/- towards loss of earning for a period of nine months, Rs.15,630/- towards treatment expenses, Rs.25,000/- towards pain and suffering, Rs.25,000/- for loss of M.A.C.A. 865 of 2004 3 amenities etc. However, the claim petition was dismissed as barred under sections 53 and 61 of the E.S.I. Act. 6. The appellant impugns the above award in this appeal. It may at once be noticed that the issue relating to the maintainability of the claim is already settled in favour of the appellant in view of the judgment rendered by a Division Bench of this Court in Kuriakose K.P. v. G.Santhosh Kumar and others {2009 (1) KHC 872} . Therefore, the said finding entered by the Tribunal is set aside. 7. What remains is the quantum of compensation to be awarded to the appellant. 8. Learned counsel for the 3rd respondent contends that the appellant will not be entitled to get any compensation under the head 'permanent disability' since the Tribunal has awarded Rs.25000/- towards loss of amenities. It is further pointed out by the learned counsel that admittedly the appellant is even now drawing his full salary and other perquisites and benefits. There is nothing on record to indicate that because of the injury suffered by the appellant, his employer has taken away any of the benefits which he had been availing of as remuneration prior to the accident. It is also pointed out by the learned counsel that the disability factor may come into play, if at all, only after the retirement of the appellant from service. 9. We are unable to agree with the above contention raised by the learned counsel for the 3rd respondent in toto. However, M.A.C.A. 865 of 2004 4 keeping in view the entire facts and circumstances, we are of the view that some reasonable amount will have to be awarded to the appellant under the head 'permanent disability'. For this purpose a notional income of Rs.3000/- per month in the post-retirement scenario can be adopted. Percentage of disability can be taken as 12% and a multiplier of 6 is just and reasonable. Thus the compensation payable under this head will come to Rs.25920/- (3000 x 12 x 12 x 6/100). 10. Since the appellant has already been awarded Rs.67,070/- towards the benefit receivable by him under the Employees State Insurance Act which covers the period during which he was constrained to be away from duty, we are of the view that the amount of Rs.50,167/- being loss of earning will have to be deducted from the award passed by the Tribunal. 11. Thus, the total amount of compensation payable to the appellant can be worked out as hereunder:- Rs.1,18,668 - Rs.50,167 = Rs.68501 + 25,920 = Rs.94,421 with interest at the rate of 7.5% from the date of petition till the date of realisation. The appeal is disposed of as above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-