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 FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 MACA.No. 142 of 2008() ---------------------- OPMV.3457/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER IN OPMV: --------------------------------- MR.K.R.RAMACHANDRAN NAIR, AGED 66, S/O.LATE MR.N.RAMAN PILLAI, HOUSE NO. XXII/232, MONTISSERY LANE, INDIVARAM, KOCHI UNIVERSITY POST, THRIKKAKARA SOUTH. BY ADV. SRI.T.K.RADHAKRISHNAN SMT.K.L.SREEDEVI RESPONDENT(S): RESPONDENTS IN OPMV: ----------------------------------- 1. C.VIJAYAKUMARI, W/O.SRI.KAMALASANAN, SUBASH NIVAS, CHANTHAMULA, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM DISTRICT. 2. SOMAN.K., AGED 48, S/O.SRI.G.KUTTAN, KUNNIL HOUSE, KARINGAL, KANDOLA P.O., NEYYATTINKARA, KUMARANALLUR, THIRUVANANTHAPURAM DT 3. THE UNITED INDIA INSURANCE CO. LTD., NEYYATTINKARA BRANCH, NEYYATTINKARA, THIRUVANANTHAPURAM DIST. 4. THE NEW INDIA ASSURANCE CO. LTD., 1ST FLOOR, PAULSON BUILDING, SOUTH KALAMASSERY, KOCHI 682 022. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R3 SRI.RAJAN P.KALIYATH FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. -------------------------------------------- M.A.C.A. No. 142 OF 2008 -------------------------------------------- Dated this the 17th day of July, 2009 JUDGMENT Abdul Rehim, J. Claimant in O.P.(MV) No. 3457 of 1999 on the files of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant. He sustained injuries when a lorry collided against the car driven by him, along with his wife and brother as passengers therein. The appellant sustained bilateral rib fractures with flail chest and fracture of left brachial ramus and acetabulam along with fracture of right pelvic ring. He also lost one teeth, the right lateral incisor. The appellant was admitted at KVM Hospital, Cherthala immediately after the accident, from where he was referred for better management to Medical Trust Hospital, Ernakulam. He was put to ventilator support during the initial days. He continued inpatient treatment on three spells at the Medical Trust Hospital, Ernakulam and thereafter at the NSS Medical Mission Hospital, Pandalam. The total inpatient treatment was for 58 days. Thereafter he continued outpatient treatment for a prolonged period with POP cast for six weeks on two occasions. 2 2. The appellant was working as Manager (R & D) at the head office of FACT. Ext.A13 is the salary certificate produced. It is noticed therein that the gross salary of the appellant during that time was Rs. 16,006.75, whereas the Tribunal had reckoned his basic salary of Rs. 8875/- only. Ext.A14 is the certificate with respect to leave of the appellant which shows that he was on leave for about 4 months. Inspite of production of Exts. A13 and A14, the Tribunal has granted an amount of Rs. 8000/-, only under the head of loss of earning, which is highly unrealistic and inadequate, according to the appellant. Ext.A16 is the disability certificate, from which it is evident that the appellant had persistent disability like limitation of movement of hip, wasting of gluteal and thigh muscles, pelvic obliquity and limping due to pain, etc. Inspite of production of the certificate the Tribunal has not granted any compensation under the head of compensation for continuing permanent disability. On the other hand, Rs. 8000/- was awarded for discomfort and inconvenience. The learned counsel appearing for the appellant vehemently contended that total disallowance of claim for continuing permanent disability and loss of 3 earning power is highly erroneous. 3. On a consideration of the entire facts and circumstances and evidence on record, we are convinced that the appellant sustained very serious injuries and continued prolonged treatment. It is evident from the nature of injuries and the details of treatment that the appellant had persistent disability resultant out of the injuries sustained. But it is evident that the disability has not affected his employment and he continued in service. Therefore while considering compensation on account of permanent disability only the diminished future prospects for re-employment after retirement alone can be considered. The continuing permanent disability which he carries life long has also to be compensated. Considering these aspects we feel that an amount of Rs. 35,000/- under the head of compensation for continuing permanent disability and an amount of Rs. 15,000/- towards loss of amenities and enjoyment in life will be just and reasonable to be awarded. This will entitle the appellant for an additional of Rs. 42,000/- under those heads (Rs. 35,000/- + Rs. 15000/- -Rs. 8000/-). It is evident that the appellant was drawing a monthly salary of Rs. 16,000/-. He was on leave for a 4 period of four months. Therefore the compensation for loss of earning is substituted with a total amount of Rs. 64,000/- which will entitle the appellant for an additional sum of Rs. 56,000/-. Under the above circumstances, the total compensation need be enhanced by an additional sum of Rs. 98,000/- (Rs. 56,000/- + Rs. 42,000/-). In the result, the appeal is partly allowed enhancing the total compensation of Rs. 42,500/- awarded by the Tribunal by a further sum of Rs. 98,000/-, which will carry interest at the rate of 7.5 per cent per annum from the date of the claim petition till payment. The third respondent-insurance company is directed to make payment of the amount within a period of three months. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 5