IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 MACA.No. 501 of 2004() ---------------------- OPMV.1541/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: ------------- P.P.PHILIP, AGED 58 YEARS, S/O.THOMAS, ELAPARABIL HOUSE, CHAKKINGAL ROAD, PALARIVATTOM. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENTS: --------------- 1. MR.S.KUBERABALAKRISHNASWAMI, MANIKKAM PALAYAM, KURICHI P.O. BHAVAN, T.K.THAMIL NADU. 2. ANIL KUMAR M.A, MOOLEDAKKUDU HOUSE, VADAKKUMPURAM, N.PARUR. 3. THE NATIONAL INSURANCE CO.LTD., MATTUR MAIN ROAD, BHAVANI 638 302. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P. JOSEPH,JJ. ------------------------------------------- M.A.C.A.NO.501 OF 2004 ------------------------------------------ Dated this the 4th day of September, 2008. JUDGMENT Koshy, J: The appellant/claimant sustained injuries in a motor accident on 21.12.1996. He claimed an amount of Rs.8,34,000/= contending that the accident occurred due to the negligence of the second respondent driver of the vehicle owned by the first respondent and insured by the third respondent insurance company. But, only Rs.2,37,1000/= was awarded and directed the third respondent insurance company to deposit the amount. The only dispute is regarding the quantum of compensation. The doctor has considered the medical certificate and the injuries found by him reads as follows: "Petitioner sustained the following injuries as revealed from Ext.A2 wound certificate issued from Ernakulam Medical Centre: Conscious. Oriented. compound fracture (R) fronto zygomatic complex with loss of continuity. Ragged Laceration lateral to (R) eye, involving upper eyelid and extending to (R) zygomatic arch with fracture at fronto zygomatic region with loss of bone. Proptosis (R) MACA.NO.501/04 . 2 eye with loss of vision. Open communited fracture (R) tibia. Open himalleolar fracture (R). Fracture 5th metatarsal (R). Wound debridement, external fixation skin grafting and exploration of (R) eye done. Petitioner was in the hospital for 73 days. He mainly sustained compound fracture of right fronto zygomatic complex. Open communited fracture of right tibia, open bimaleolar fracture (R), fracture of 5th metatarsal (R) and proptosis (Rt) eye with loss of vision. Ext.A9 is the medical certificate issued to him which reveals that the loss of vision to right eye was due to the blunt injury. Ext.A14 is the detailed treatment certificate issued to the petitioner. Open reduction and internal fixation of the right fronto zygomatic complex was done and external fixation was provided for both bone fracture of right leg. Open reduction and internal fixation of right ankle was done to manage the bimalleolar fracture. Exploration of right eye was done which revealed total retinal detachment, skin grafting was also done for the right ankle. Illizarov ring fixation also done and ultimately the petitioner w as discharged on 3.3.1997. He was readmitted on 5.5.1997 for readjustment of the rings. He w as again admitted on 8.8.1997 when full weight bearing was advised. Altogether the petitioner w as admitted on nine occasions for 105 days." It is the contention of the appellant that he was a Lab Assistant in H.M.T, Kalamassery, a public sector undertaking. In view of the accident, he had to take continuous leave from the date of the accident and finally he was compulsorily retired from service on 30.6.1998. It is his case that the normal retirement age is 60. In other wards, at the time of the accident he had 10 more MACA.NO.501/04 . 3 years of service. It is his further claim that being a technical employee, he can work in private labs after his retirement. But considering the injuries, there is 100% loss of earning capacity. As per the disability certificate issued, his visual handicap was assessed at 30% and orthopedic disability was assessed at 25%. Ext.A11 certificate shows that his vision of the right eye was lost. In view of his visual loss, the Tribunal accepted 30% disability assessed by the Board. With regard to the orthopedic disability, 10% disability was taken even though the medical board attached to the General Hospital certified 25% disability. We are of the view that there is no reason to take a lessor percentage of disability than that is certified by the doctor. In any event, compensation ought to have been granted for 50% disability even though the contention of the appellant is that he should have been granted compensation for loss of 100% earning capacity. With regard to the monthly income, the Tribunal has taken Rs.1,500/= as the monthly income. His case is that he was an employee in H.M.T, Kalamassery and his monthly income at the time of the accident was Rs.8,000/=. Ext.A8 is the salary certificate. At the time of accident, he had ten more years of service to retire. He was admitted in a hospital for 105 days. He has taken leave for 18 months and 10 days. Thereafter, he was compulsorily retired from MACA.NO.501/04 . 4 service. If he continues in service for 10 more years, his salary would have been tippled in view of periodical pay revisions and yearly increments even without considering his promotions prospectus. We are of the opinion that at least Rs.5,000/= ought to have been taken as the monthly income instead of Rs.1,500/= though his salary on the date of the accident was Rs.8,000/=. The Tribunal has taken 8 as the multiplier. Going by the second schedule, 11 is the apt multiplier of a person aged between 50 and 55 years old. The Tribunal should have taken 10 as the multiplier. If that be so, compensation payable will be Rs.3,00,000/= (5000x12x10x50/100) instead of Rs.57,600/= fixed by the Tribunal. Therefore, additional compensation payable will be Rs.2,42,400/=. Tribunal has awarded an amount of Rs.57,600/= for loss of earning power. That has to be deducted. Therefore, additional compensation payable thereafter will be Rs.1,84,800/=. Even though he was on leave for 18 months and 10 days, the Tribunal has granted loss of wages for six months. It is true that for part of the period, he must have get some leave wages but he lost the facility for encashment or opportunity to take the leave for some other purposes. We are of the view that compensation ought to have been awarded for ten months' loss of wages at least at the rate of Rs.5,000/= per month. We are not calculating the actual wages received at the MACA.NO.501/04 . 5 time of the accident. If that be so, he is entitled for loss of actual earnings of Rs.50,000/=. The Tribunal has awarded only Rs.9,000/=. Therefore he will be entitled to an additional amount of Rs.41,000/= on that count. Therefore, additional compensation payable will be Rs.2,25,800/=. It is contended that at the time of retirement, he has received an amount of Rs.12,00,000/= as gratuity, P.F. dues and retirement dues etc is not a ground for reducing the compensation. If he continues in service, his retirement benefits would have been much more based on the last drawn salary and he also lost an opportunity to take up another job after his retirement. The additional amount of Rs.2,35,800/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit. On deposit of the above amount, the appellant is allowed to withdraw the amount. J.B. KOSHY, JUDGE. THOMAS P. JOSEPH, JUDGE. cl MACA.NO.501/04 . 6