IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 MACA.No. 728 of 2004() ---------------------- OPMV.137/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- SADANANDAN, S/O. KUTTAN, RAMAN HOUSE, KALLOOR THEKKUMMURI VILLAGE, PALISSERY, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE RESPONDENT(S): RESPONDENT: -------------------------- 1. K.S. SANKARAN, S/O. SUBRAMANIAN, KOCHERY HOUSE, ANNEMANADA P.O., PALISSERY DESOM, KALLOOR THEKKUMMURI, MUDUNDAPURAM TALUK. 2. CHANDRAN. K.S., S/O. SUBRAMANIAN, KOCHERY HOUSE, ANNAMANADA P.O., PALISSERY DESOM, KALLOOR THEKKUMMURI. 3. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, KALLOOKKARAN SHOPPING COMPLEX, ANGAMALY. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.R. RAMACHANDRA MENON, JJ. --------------------------------------------------- MACA NO. 728 OF 2004 ----------------------------------- Dated this the 15th day of October, 2009 J U D G M E N T P.R.RAMACHANDRA MENON, J Inadequacy of the compensation awarded by the Tribunal is the subject matter in this appeal preferred by the claimant. 2. The accident occurred on 05.09.1995, when the offending vehicle (a goods carriage) insured by the 3rd respondent hit against the bicycle ridden by the claimant at about 7.30 p.m. causing serious injuries, which led to the claim. The contention of the claimant before the Tribunal was that, he was working as a Line Assistant in the Kerala State Electricity Board and that the accident was due to the rash and negligent driving of the goods carriage, which came from the opposite direction. Stating that the claimant was getting a monthly income of Rs.2,500/- (Rupees Two thousand five hundred only), a total compensation of Rs.5,00,000/- (Rupees Five lakhs only) was claimed in view of the permanent disability caused; particularly in view of the serious nature of injuries consisting of fracture to the frontal bone and loss of vision to the eye sight. Subsequently, the quantum of compensation was got limited to MACA NO. 728/2004 2 Rs.2,00,000/- (Rupees Two lakhs only) as per order in I.A. No. 3727/2001. 3. The claim was resisted by the respondents on many a ground, disputing the negligence and stating that the injuries caused to the claimant were only minor in nature and further that the amount claimed under different heads were very much on the higher side. The evidence consists of the oral testimony of PW1 and PW2 (who are the claimant and Doctor who issued the disability certificate respectively) and the documentary evidence, adduced as Ext. A1 to A14 from the part of the claimant. Ext. B1 was produced from the part of the respondents, which is a true copy of the Insurance Policy. 4. On conclusion of the trail, the Tribunal arrived at a finding that the accident was only because of the rash and negligent driving of the goods carriage by the second respondent and hence that the respondents were liable to satisfy the liability. In view of the finding that there was a valid Policy issued by the third respondent, the liability was mulcted on the shoulders of the insurer. 5. With regard to the quantum, referring to the nature of injuries and the extent of disability caused, the Tribunal observed in paragraph 9 of the verdict, that there was partial loss of eye sight of the claimant. Taking note of the contents of Ext.A13 salary certificate, it was observed that the monthly salary of the claimant was Rs.4,698/-. (Rupees Four thousand six hundred and ninety eight only). However, it was observed that the accident had not MACA NO. 728/2004 3 resulted in any adverse circumstances, since there was no question of loss of employment or such other hurdles with regard to the loss of earning capacity, so long as the petitioner could continue in service till he attained the age of superannuation, though the accident was at the age of 32 years. However, since the disability was to have some nexus with the future earning capacity with regard to the 'post retirement period', i.e., after attaining the age of 55, reckoning the multiplier of 8 and also the notional income as Rs.1,500/-, the Tribunal awarded a sum of Rs.36,000/- towards the loss of earning capacity reckoning the permanent disability as 25%, besides awarding various amounts under other permissible heads; such as Rs.6,500/- towards the loss of earning, Rs.1,000/- as transportation expenses, Rs.8,200/- towards medical expenses (as covered by the bills produced) Rs.500/- towards the bystander's expenses, Rs.10,000/- for pain and sufferings and Rs.7,000/- towards loss of amenities and enjoyment in life. Accordingly, a total sum of Rs.68,800/- was awarded; which was directed to be satisfied by the insurer with interest at the rate of 9% per annum. 6. Learned counsel for the appellant submits that the amounts awarded by the Tribunal, despite proving his monthly income as more than Rs.4,000/- is abysmally low. It is also stated that in spite of the certified permanent disability of 40% to 45% vide Ext. A12, the Tribunal reckoned only 25%, without any basis. MACA NO. 728/2004 4 7. Learned counsel for the insurer submits that the loss of earning capacity was assessed by the Doctor (PW2) who did not have any occasion to treat the claimant and further that the said certificate has been issued on the basis of 'chart reading method', as contrary to any well known scientific method; which has been taken note of by the Tribunal in paragraph 9 of the Award. It is also relevant to note that Ext.A12 disability certificate is only with respect to the 'loss of vision to the eye' and in the said circumstance, the Tribunal cannot be blamed for having reckoned only 25% as the whole body disability. This is more so, in view of the admitted fact that the accident had not resulted in any loss of employment or demotion to the claimant. 8. However, going by the facts and figures brought on record, we find that the notional income fixed by the Tribunal in respect of the 'post retirement period' at the rate of Rs.1,500/- appears to be on the lower side. In view of the undisputed fact that the claimant was working as a 'Line Assistant' in the Kerala State Electricity Board and the semi-skilled nature of employment, the claimant would have been in a position to procure some other income from such other sources as well, even after retirement. As such, this Court finds it fit and proper to have the notional income refixed as Rs.2,000/- per annum and to effect necessary computation. Thus, on recalculating the compensation in respect of the loss of earning capacity, we find that a total sum of Rs.48,000/- is liable to be paid to the claimant (2,000 x MACA NO. 728/2004 5 12 x 25/100 x 8) and as such, the appellant is entitled to get the balance sum of Rs.12,000/- under this head. 9. Further, considering nature and extent of disability sustained, the compensation given towards the loss of amenities and enjoyment in life as Rs.7,000/- would stand enhanced to Rs.10,000/- and hence the balance sum of Rs.3,000/- can be awarded to the appellant under this head. 10. In the above facts and circumstances, the appellant will be entitled for a balance sum of Rs.15,000/- over and above compensation already awarded by the Tribunal and the said amount shall be paid with interest at the rate of 7% per annum from the date of filing the petition, till the payment is effected. We direct the Insurance Company to effect the said deposit within three months from the date of receipt of a copy of this judgment. The Appeal is allowed in part. No cost. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE dnc