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 WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 MACA.No. 840 of 2007() ---------------------- OPMV.355/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): PETITIONER: ------------------------------- SREEKUMAR K.B.,S/O.LATE BHASKARAN NAIR, MANGLALAYAM,KOLANI KARA,THODUPUZHA VILLAGE. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): RESPONDENTS: ------------------------------------ 1. JIBY P JOSEPH,PUTHENPURACKAL HOUSE, MEEKKADAMBU P.O.,MUVATTUPUZHA. 2. THE ORIENTAL INSURANCE CO.LTD REP.BY ITS DIVISIONAL MANAGER,MUVATTUPUZHA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 SRI.JOICE GEORGE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------- M.A.C.A. No.840 of 2007 ---------------------------------- Dated this the 9th day of December, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. 1. The claimant in O.P(MV) No:355/2003 on the files of the Motor Accidents Claims Tribunal, Thodupuzha is in appeal seeking enhancement of compensation awarded. He sustained injuries when a Jeep hit against a Motor Cycle on which he was travelling as pillion rider. The appellant sustained type-III open comminuted fracture of both bones of left leg. He underwent skin grafting and bone grafting surgeries. He was hospitalised on different spells and continued treatment as inpatient for a considerable period. Thereafter he continued treatment as outpatient for about one year. The appellant is a qualified Pharmacist, holding a Bachelor Degree in Pharmacy. He was employed abroad at Sultanate of Oman in a private clinic. In proof, the appellant had produced Ext.A12 and A14 series certificates and A13 identity card. As per Ext.A14 it is revealed that he was drawing a monthly salary of 300 Omani Rials. The appellant had also produced copies of his Passports. Oral evidence of the appellant as PW1 revealed that he is still working at Muscat, but under a different employer. 2. The injury sustained to the appellant had resulted in partial permanent disability. Ext.A15 certificate issued by the MACA.840/07-F 2 Medical Board revealed the extent of disability as 30%. But the Tribunal considering the evidence of the appellant arrived at a finding that the extent of disability certified as 30% is exaggerated and fixed 15% permanent disability for computation. Since the document with respect to employment and salary of the appellant was not properly proved, the Tribunal adopted income of the appellant as Rs.3000/- per month. A total compensation of Rs.2,61,000/- was awarded by the Tribunal. 3. Heard, learned counsel for the appellant and the Standing Counsel for the 2nd respondent insurance company. The appellant contended that the Tribunal went highly erred in not accepting monthly income of the appellant which was proved through various documentary evidences. Hence it is contended that the amount of compensation awarded under the heads of temporary loss of earning power, compensation for permanent disability and loss of earning power are highly unrealistic and inadequate. The learned Standing Counsel on the other hand opposed enhancement contending that reasonable amounts has already been awarded by the Tribunal. 4. On evaluating the evidence on record, we are satisfied that the appellant was successful in proving that he was employed in Muscat as a Pharmacist during the period when the accident occurred. The salary certificates, identity card, copies MACA.840/07-F 3 of passports, Airline boarding pass, etc: produced by the appellant will clearly prove the above aspect. But while considering the income derived by the appellant, the various aspects like the high living expenditure in Gulf countries as well as the imponderables in the continued employment therein, have to be taken note of. Merely because the appellant had produced the contract of employment, it could not be said that there is absolute job security for the appellant in the Gulf for any considerable period. Further, the high living expenditure in Gulf countries will considerably reduce the net income earned by the appellant. It has come out in evidence that the exchange rate of Oman Rial during that time is Rs.120/-. Hence it is evident that the petitioner was getting a salary of Rs.36,000/- during the relevant period. But considering the high living expenditure and imponderables in job, in our moderate estimate we fix his net monthly earnings at Rs.10,000/-. Calculated on that basis the temporary loss of earning for 11 months awarded by the Tribunal need be re-fixed at Rs.1,10,000/-, which will result in enhancement of compensation under that head by a sum of Rs.77,000/-. 5. On the aspect of compensation for permanent disability, the Tribunal had awarded an amount of Rs.61,200/- adopting net monthly income of the appellant as Rs.2000/- and MACA.840/07-F 4 the extent of disability at 15%, adopting multiplier of 17. But as stated above it has come out in evidence that the appellant got employment in Oman itself as Pharmacist subsequent to the accident ad he was continuing in employment therein. Therefore it is evident that the partial permanent disability if any resulted out of the injuries had not affected his continued employment in any manner. Therefore we are of the opinion that the appellant is not entitled for any compensation under the head of loss of earning power. At the same time we notice that the appellant is continuing rest of his life period with a permanent physical disability, which had to be compensated. So also, the permanent disability may affect his loss of earning power after his normal age of retirement from the present employment. Or in other words the permanent disability may cause diminution in the prospects of re-employment after his retirement. In our considered opinion we are of the view that the appellant need be compensated for his continuing permanent disability with a lumpsum amount of Rs.50,000/-. So also on a moderate estimate we are of the view that the diminished prospects of re- employment after retirement for a period of 5 years at 15% of the present net earnings will only be just and reasonable award. Calculated on that basis, the compensation for loss of earning power need be fixed at Rs.90,000/- (Rs.10000 x 12 x 5 x 15%). MACA.840/07-F 5 This will entitle the appellant for enhancement of the compensation by a sum of Rs.28,800/- (Rs.90000 - Rs.61,200). Thus the appellant is entitled for a total enhancement of Rs.1,55,800/- (Rs.77,000 + Rs.50,000 + Rs.28,800). 6. It is contended by the learned counsel for the appellant that considering the fact that the accident occurred during the year 2002, the rate of interest at 6% awarded by the Tribunal is highly unrealistic and inadequate. In our considered opinion we are inclined to increase the rate of interest from 6% to 7.5%. 7. In the result the appeal is partly allowed enhancing the total compensation of Rs.2,61,000/- awarded by the Tribunal by a further sum of Rs.1,55,800/-. The original amount of compensation as well as the enhancement granted in this appeal will carry interest @ 7.5% per annum from the date of claim petition till payment. The 2nd respondent insurance company is directed to make payment of the amount within a period of two months from the date of receipt of this Judgment. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb