IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 MACA.No. 937 of 2008() ---------------------- AGAINST THE ORDER DATED 23/07/2007 IN O.P.(MV) No. 1815/01 AND OP(MV).1816/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): PETITIONER: ----------------- BABY.C.M., S/O.MATHEW, CHUNGAPURAKKAL HOUSE, MUDAPPALLUR, VADAKKANCHERY, ALATHUR. BY ADV. SRI.P.VIJAYA BHANU SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S): RESPONDENTS: ------------------- 1. P.VIJAYALAKSHMI, W/O.DAMODARAN, MULLAPPALLY HOUSE, CHEMBOOTHARA, PATTIKKAD, THRISSUR (OWNER OF BUS KL8/E 9342) 2. ABI, S/O.THOMASKUTTY, PONMANI VEETTIL, CHANOTH DESOM, PATTIKKAD, THRISSUR.(DRIVER OF BUS) 3. NEW INDIA ASSURANCE CO. LTD., THRISSUR. BY ADV. SRI.M.RAJAGOPALAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.A.C.A.No.937 of 2008 ------------------------------- Dated this the 2nd November, 2009 J U D G M E N T Ramachandra Menon, J. The petitioner in O.P.(M.V.) No.1815 of 2001, on the file of Motor Accident Claims Tribunal, Palakkad, is the appellant herein. The accident occurred on 15.3.2001. The car driven by the claimant at the relevant time collided against the stage carriage bearing No.KL.8/E.9342 which was coming from the opposite side, causing serious injuries to the petitioner, as well as another passenger which led to separate claims preferred before the Tribunal. Both the said claim petitions were tried together, leading to the common award. 2. The appellant in the instant case was the claimant before the Tribunal in O.P.(M.V.) No.1815/2001. The claim was resisted from the part of the Insurer, while the owner, as well as the driver of the stage carriage chose to remain ex MACA No. 937 of 2008 2 parte. The only evidence rendered before the Tribunal was the oral evidence of witnesses examined as Pws. 1 to 4 and documents produced as Exts.A1 to A18. 3. On conclusion of the trial, the Tribunal, based on the evidence on record, arrived at a finding that the accident occurred only because of the negligence on the part of the driver of the stage carriage and accordingly, it was held that the claimant was liable to be compensated by the respondents. Since the validity of the Policy and coverage were never disputed to the satisfaction of the Tribunal, particularly, when no evidence was adduced in that regard, on the part of the Insurer, the liability was shifted to the shoulders of the Insurer, directing to satisfy a sum of Rs.1,76,670/-, which was ordered to be paid with interest at the rate of 7.5% per annum. The claimant has preferred the present appeal, stating that the amount awarded by the Tribunal is abysmally low, particularly, in view of the fact that no amount has been awarded by the Tribunal towards permanent disability. MACA No. 937 of 2008 3 4. During the pendency of the above proceedings, the appellant/claimant was referred to the Medical Board, as per the interim order, dated 17.9.2008, passed by this Court. Pursuant to the examination by the Medical Board, a medical report has been forwarded to this Court along with a covering letter, dated 14.10.2009, sent by the Superintendent of the Medical College Hospital, Thrissur. It is revealed from the said medical report that the claimant was having a Neurological disability of 10%, coupled with the disability under other heads, as discussed and analysed by the Medical Board. The total physical disability based on the combination formula, as specified therein, is certified as 19%. By virtue of the admitted position as above, we find that the appellant/claimant is very much entitled to get compensation in respect of the permanent disability as above. 5. As discussed by the Tribunal, in paragraph 10 of the Award, the appellant sustained serious injuries including fracture of left frontal bone, resulting in cerebral oedema. The MACA No. 937 of 2008 4 appellant was aged 52 years at the time of the accident. As such, the appropriate multiplier to be adopted is '11' as provided under the II schedule to Section 163 A of the Motor Vehicles Act. Since the claimant did not choose to produce any evidence regarding his income, the Tribunal chose to reckon the same as Rs.2000/= per month. Since no additional material has been produced before this Court as well, we do not find it necessary to modify the income reckoned by the Tribunal on a notional basis. Calculating the compensation for permanent disability, based on the certificate issued by the Medical Board, we find that a sum of Rs.50,160/= is liable to be given to the appellant under this head (2000 x 12 x 19/100 x 11). 6. The appellant has got a further case that the appellant is also liable to be compensated separately in respect of 'loss of earning power'. It is revealed from the materials on record that the Tribunal has awarded a sum of Rs.5000/- towards the 'loss of amenities and enjoyment to life'. Considering the extent of hospitalisation of nearly seven months, we find that the MACA No. 937 of 2008 5 amount awarded towards the compensation for 'loss of amenities in life' at Rs.5000/= is much on the lower side, and hence, we award a further sum of Rs.10,000/= under this head. But with regard to the claim to have the 'loss of earning power' compensated separately, the Law is well settled, in view of the decision rendered by a Full Bench of this Court in Oriental Insurance Co. Ltd. v. Hariprasad (2005 (4) KLT 977 (F.B), that, when compensation has been awarded for permanent disability and also for loss of amenities in life, no separate compensation can be awarded for loss of earning power, as the very existence of disability will contribute to the loss of earning power, which is separately assessed. Since we have given compensation for permanent disability based on the report of the Medical Board, and further that the appellant has been adequately compensated for loss of amenities and enjoyment in life, no separate amount can be awarded in respect of the loss of earning power. MACA No. 937 of 2008 6 7. However, coming to the amount payable to the appellant towards the medical expenses, the specific case as pointed out by the learned counsel for the appellant is that, only a sum of Rs.1,09,162/- has been awarded, whereas, Ext.A9 medical bills in respect of the first spell of treatment covers Rs.95,600/-, and the remaining lot covers a sum of Rs.51,159/-, thus coming to a total of Rs.1,46,759/-. Absolutely no reason has been stated by the Tribunal in paragraph 14 of the impugned Award for not granting the entire medical expenses, but for the casual observation that there is some duplication in the bills. The available evidence on record, particularly when the respondent also did not choose to adduce either oral or documentary evidence in this regard, we find that there is considerable force in the submission made by the learned counsel appearing for the appellant that the finding and reasoning given by the Tribunal is not correct or proper, and that the appellant is entitled to get the entire medical expenses. As the matter stands so, we do hereby declare that the appellant shall be compensated by paying the balance amount of Rs.37,597/- in MACA No. 937 of 2008 7 this regard as well. Thus, the appellant will be entitled to get a total sum of Rs.97,757/-, towards the balance compensation payable, in respect of the injuries sustained by him in the accident occurred on 15.3.2001. The said amount will carry interest at the rate of 7% per annum, from the date of the petition and the entire amount, as above, shall be deposited by the Insurer before the Tribunal, within a period of three months from the date of receipt of a copy of this judgment. The appeal is allowed to the above extent. No cost. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.