IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 MACA.No. 3081 of 2009() ----------------------- OPMV.130/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE ORIENTAL INSURANCE CO.LTD., BADAGARA, REPRESENTED BY ITS, ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT ----------------------- BHASKARAN, S/O.GOPALAN, RESIDING AT KAIKKANDATHIL HOUSE, PO:VATAKARA, NARAYANA NAGARAM, KOZHIKODE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.3081 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2011 JUDGMENT Basheer, J. Appellant is the insurer of a vehicle involved in a road traffic accident that occurred on August 31, 2004 and which resulted in certain injuries to the respondent/claimant in this appeal. 2. The Tribunal passed an award in favour of the claimant directing the appellant/Insurance Company to pay a total sum of Rs. 2,09,331/- towards compensation with 7.5% interest and also cost of Rs.5250/-. The above award is impugned in this appeal primarily on the ground that the Tribunal was not at all justified in awarding a sum of Rs 72,000/- under the head of loss of earnings for a period of three years. 3. We have perused the lower court records carefully. It is seen from the Medical records available in the case that the respondent/claimant had suffered fracture of shaft of femur ( L) M/3rd apart from an injury on the right frontal bone adjacent to roof of orbit MACA.No.3081/2009 2 and soft tissue injuries. The claimant was under treatment for ten days initially. But according to the claimant, he underwent further treatment in 2005 and also in 2007 because of non-union of the fractured bones of the femur. The Tribunal has reckoned the monthly notional income of the claimant as Rs. 2,000/- and awarded a total sum of Rs. 72,000/- for three years from 2004 to 2007 under the head of loss of earnings. 4. But significantly, the claimant did not have a case in his deposition that he had not been able to carry on his avocation as an employee in a tea shop for three years. In the affidavit filed by him, in lieu of chief examination, there is no such averment. Even in the claim petition also, he did not have a case that he was prevented from carrying on with his avocation for three years. 5. In that view of the matter, there is force in the contention raised by learned counsel for the appellant that the Tribunal was not justified in awarding such a huge amount under the head of loss of earnings. It is true that in 2007, the claimant is seen to have undergone some treatment in the Medical College Hospital, Kozhikode for the alleged non-union of bones at the fracture site. The claimant did not MACA.No.3081/2009 3 produce any document to show that he had been continuing treatment from 2004 till 2007 for any such complication. 6. In any view of the matter, the Tribunal, in our view, was not justified in awarding such a huge amount under the head of loss of earnings and that too for three years. In our view, interest of justice will be met, if the claimant is awarded a sum of Rs. 24,000/- under this head. Ordered accordingly. The impugned award is modified to the above extent. In all other respects, the award passed by the Tribunal is sustained. The appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.3081/2009 4