IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 MACA.No. 89 of 2003(C) ---------------------------------- OP(MV).NO.472/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM. .................... APPELLANT/ PETITIONER: -------------------------------------- C.R.VISWANATHAN, S/O. RAMACHANDRAN, SREEMADAM, MANNARKKAD, NOW RESIDING AT 67-B, 5TH CROSS WEST, OM GANESH NAGAR, VADAVALI, COIMBATORE-641 041. BY ADV. SRI.KRISHNAKUMAR MANGOT, ADV. SRI.P.RAMACHANDRAN. RESPONDENTS/ RESPONDENTS 1 TO 3: ---------------------------------------------------------- 1. S.STEPHEN, S/O. SEBASTIAN, SARIVILLA HOUSE, PERAYAM, KOLLAM. 2. T.ABDUL KALAM, S/O.YOUSUF KUNJU, JAYAMANDIRAM, KOTTAMKARA, KOLLAM. (OWNER OF LORRY KRO 6210). 3. THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICER, P.B.NO.157, PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM-691 001. ADV. SRI.LAL GEORGE FOR R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.89 OF 2003 (C) ----------------------------------- Dated this the 20th day of October, 2008 J U D G M E N T KOSHY,J. Appellant/claimant sustained serious injuries in a motor accident on 1.12.19998. He claimed a compensation of Rs.8 lakhs. But Tribunal awarded a total compensation of Rs.51,560/-. Only dispute is regarding the quantum of compensation. Hence, we are considering only the quantum of compensation. 2. Tribunal has considered the injuries at paragraph 10 of the award which is as follows: “Ext.A19 is the accident register-cum-wound certificate issued from Saveetha Hospital dated 1.12.1999. As per the said document, it can be seen that he sustained two numbers of superficial abrasion over the frontal region, bleeding through the right nostril, swollen left side lower lip, 0.5 cm lacerated wound, suturing done, left tongue bite 0.5 cm in the base left knee swollen 2 nos. of MACA.89/03 2 superficial abrasion, parietal loss of left central incisor tooth. These are the injuries noted. Ext.A20 is the police intimation for Medico Legal cases from K.G.Hospital, Coimbatore. As per the said document, the injuries noted are two abrasions 5 x 1 cm over the forehead, abrasions over (L) shoulder, abrasions over (L) knee joint, abrasion over (Lt) great toe, contusion lower lip. In the clinical diagnosis RTA with multiple injuries is noted. Ext.A21 is the copy of the wound certificate in triplicate issued from KG Hospital. As per the said document, it is noted that he is admitted on 2.12.1999 and discharged on 4.12.1999. In the col. of findings, it is noted two abrasions each 5 x 1 cm over the forehead, two abrasions over left shoulder joint, abrasions over left knee joint, abrasion over left great toe, fracture left upper central incisor tooth and laceration in the lower lip and tongue. Ext.A22 is another certificate issued from the same hospital. As per the said document, there is fracture of one incisor on the upper jaw, laceration in lower lip and tongue and advice - root canal treatment. Ext.A23 is a X- ray report of KG Hospital. The possibilities of fractures ruled out as per the said document. Ext.A24 is copy of discharge summary issued from the same hospital. From the said document, the CT scan brain report it is noted as CT brain plain study within normal limits and in col. of diagnosis, it is further noted as fracture of 1. Ext.A25 is a discharge note issued from KG Hospital. Ext.A26 is another discharge intimation issued from Apollo Speciality Hospital, Chennai. As per the said document, it is seen admitted on 9.12.1999 and discharged on 15.12.1999. In col. of course in the hospital: Patient was admitted and investigated for any missed injury of which nothing new was discovered. He was treated MACA.89/03 3 with IFT and neck exercise for his neck pain which improved, he had a broken tooth and gingival inflammation around 1st molal which was treated by Dr.John Sebastian.” As a result of the accident, cervical spondalosis was developed and doctor issued Ext.A59 disability certificate. PW3 Doctor was examined to prove the disability certificate. But the Tribunal did not accept the above as he continued his employment. It is the contention of the appellant that after four months, he had to leave the company and he joined a small company as he was not able to continue in the first company. He was working as Manager in Hindustan Motors Limited at the time of the accident. Ext.A14 is the pay slip produced by the appellant which shows that his gross pay was Rs.41,008/- and basic pay was Rs.13,690/-. Ext.A15 is another salary slip for the month of December, 1999. As per the said pay slip, his gross pay was Rs.27,567/-. He worked only for few days in December due to injuries and the resultant loss of salary was Rs.15,433/- rounded to Rs.15,000/-. With regard to the contention that the appellant lost the job after three months and he had to join another company, Tribunal MACA.89/03 4 observed that in managerial level, at any time job can be lost and accidental injury cannot be treated as the cause for loss of job. But the fact that he was compelled to resign from the company within four months of the accident is not disputed. Even in December 1999, salary was reduced by Rs.15,000/-. But the fact that he rejoined the company after about 15 to 20 days of the accident itself is reflected in the pay slips produced by the appellant. Further, since the monthly income was above Rs.41,000/- compensation cannot be calculated on a multiplier method. Even if compensation was calculated for 10% disability on a multiplier method, it will be huge sum. Considering the injuries and its after effects, we are of the opinion that even for 1% disability, taking the multiplier of 13 and taking Rs.13,500/- as the monthly pay, Tribunal calculated a compensation of Rs.21,060/-. Even if that method is adopted, then for 10% disability it is more than Rs.2 lakhs. However, D.A. is also a part of the wages and therefore if that is also taken into account, the compensation will be tripled. As we have stated, for calculating compensation, a multiplier method cannot be adopted especially even after the accident, he got another job and details of loss of income was not available. However, the MACA.89/03 5 amount awarded for disability is too low and we are of the opinion that atleast Rs.50,000/- more should be awarded for permanent disability and other consequences of the disability. As we have already stated that his actual loss of income considering the difference between the two pay slips amounts to Rs.15,000/-, Tribunal has awarded only Rs.6,500/- for actual loss. Therefore, he is entitled to Rs.8,500/- more for actual loss of earnings during the period of treatment. Even though medical bills with a consolidated pay of Rs.81,710/- was produced, that was not accepted by the Tribunal. Tribunal did not allow the medical bills from the Apollo Hospital for Rs.81,710/- as it was spend for check up. The photocopies of certain bills were not accepted on the ground that he might have been reimbursed from the company. But Tribunal found that the total bills produced amounts to Rs.42,990/-. But Tribunal awarded only Rs.15,000/- for medical expenses, hospital charges etc. When the medical bills amounting to Rs.42,990/- was produced, awarding of Rs.15,000/- is too low. Due to the consequence of the accident, appellant has to undergo medical check up. In the above circumstances, we award Rs.25,000/- more for medical expenses, Hospital expenses, by-stander expenses and other expenses. Tribunal MACA.89/03 6 has granted Rs.6,000/- for pain and sufferings. It has come out in evidence that apart from the various injuries mentioned, he had fracture of one tooth also and we are of the opinion that Rs.7,500/- ought have been awarded for pain and sufferings. Hence the additional amount comes to Rs.1,500/-. Therefore, total additional compensation payable will be Rs.85,000/-. The above amount of Rs.85,000/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the decreed amount by the Tribunal and on deposit of the amount, appellant is allowed to withdraw the same. Appeal is accordingly partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.A.C.A.NO.89 OF 2003 (C) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 20th October, 2008