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 TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 MACA.No. 728 of 2005() ---------------------- OPMV.213/1997 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/CLAIMANT: ------------------------- DR.PREMCHANDRAN, S/O.C.P.KUNJUNNI PILLAI SREE SANKARA BHAVAN, ANJALUMMOODU, PERINAD P.O., KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S)/CLAIMANTS: -------------------------- 1. SIVARAJAN, S/O.KUNJU PILLAI, CHARUVILA PUTHEN VEEDU, KOTTAKKAKOM, PERINAD P.O., KOLLAM. 2. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KOLLAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ----------------------------------- M.A.C.A. No. 728 of 2005 -------------------------------------- Dated this the 28th day of July, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. 1. The claimant before the Tribunal is in appeal seeking enhancement of the amount of compensation awarded by the Tribunal. The accident occurred when a car hit against the motor cycle on which the appellant was riding. The appellant sustained multiple compound fracture of both bones on his right leg along with a lacerated injury to extensor of flexor tendon. He also sustained injury to head leading to bleeding from left ear. The appellant was initially treated at Medical College Hospital, Thiruvananthapuram, as inpatient for about 14 days. Thereafter he was admitted at Specialist Hospital, Ernakulam, wherein he underwent inpatient treatment from 8.8.1996 to 11.9.1996 and surgeries on 14.8.1996 and 31.8.1996. He was again admitted on 17.10.1996 for further review and re-construction of the tibial nerve by nerve grafting and also tendon reconstruction. Thereafter he was put under POP cast for about 1½ months. From 8.9.1997 to 23.9.1997 he was again admitted at Cosmopolitan Hospital, Thiruvananthapuram wherefrom bone MACA.728 /05 2 grafting surgery was done on 11.9.1997. It is evident from Exts.A6 to A11 medical records that the appellant underwent prolonged treatment for more than one year and he underwent various surgical procedures in between. Ext.A20 is the disability certificate (mistakenly noted as Ext.A12 in the award of the Tribunal), which showed that the injury sustained had resulted in persistent disability, in which he had a limp and a shoe-raise on the right side due to shortening of the right leg. It is also reported that there is slight lateral mobility at the grafted portion. The permanent disability is assessed at 22%. 2. The appellant is a qualified Anesthetist. Ext.A13 to A19 are certificates issued from various hospitals wherein the appellant is working as Consultant Anesthetist. At the time of accident the appellant was aged 40 years. Ext.A26 is extract of the Income Tax return for the previous 4 months, i.e: from April to July 1996 which showed a total income of Rs.65,000/-, which will work out to an average monthly income of Rs.16,000/-. The contention of the appellant is that inspite of clear evidence with respect to prolonged treatment for more than 1½ years, the Tribunal had computed loss of earning only for a period of 3 months. Further it is vehemently contended that inspite of production of disability certificate and adducing oral evidence of the Doctor, the Tribunal had not granted any amount towards MACA.728 /05 3 compensation for continuing permanent disability and loss of earning power. The Tribunal had worked out 10% loss of income for one year in order to award compensation under the head of loss of amenities, which is highly unrealistic and erroneous, is the contention. 3. On an anxious scanning of the award and on a perusal of the evidence on record, we are satisfied that the amount of compensation awarded as loss of earning and the award under the head of compensation for continuing permanent disability and loss of earning power, requires re-consideration. It is clear and evident from the documents produced that the appellant is a qualified Anesthetist and he was working as Consultant Anesthetist at different hospitals. But no reliance can be placed on Ext.A2 in order to arrive at a conclusion that the appellant was earning monthly income at the rate of Rs.16,000/-. Ext.A26 pertains to period of 4 months prior to the accident. But whether such an income tax return was filed after the date of the accident is not discernible. Further, no proof is adduced with respect to income tax returns for the previous assessment years or the succeeding assessment years. Therefore no conclusive proof for income of the appellant is produced. Hence we feel that considering his educational qualification and employment a moderate guess work regarding the income would be more MACA.728 /05 4 appropriate. Considering the fact that the accident occurred during the year 1996 we feel that the income of the appellant can be fixed moderately at Rs.7,000/- per month. 4. Eventhough disability certificate assessing the extent of disability at 22% is produced, the award of the Tribunal is silent about grant of compensation doe continuing permanent disability and loss of earning power. Considering the nature of injuries sustained and considering the persistent complaint explained in the disability certificate we feel that adopting the extent of disability at 10%, as done by the learned Tribunal for computation of compensation for loss of amenities, is quite reasonable and justifiable. Therefore we are inclined to hold that the appellant had persistent disability of 10%. 5. Worked out on the above basis we are inclined to grant compensation for loss of earning for a period of 15 months. Hence the compensation under the head of loss of earning need be refixed as Rs.1,05,000/- (7000 x 15). This will entitle the appellant for an additional amount of Rs. 57,000/- under that head. 6. The appellant was at the age of 40 years at the time of the accident. Hence the correct multiplier to be adopted for working out compensation for disability is 15. The Tribunal had awarded a sum of Rs.19,200/- towards loss of amenities. But we MACA.728 /05 5 are inclined to re-work the amount on the basis of the percentage of disability, considering the fact that he being an Anesthetist the disablement will cause discomfort and suffering in the occupation, and it is a fact that the physical disability will persist life long. Therefore the compensation for continuing permanent disability, loss of amenities and enjoyment in life and loss of earning power is re-fixed at Rs.1,26,000/- (Rs.7000x12x15x10%). This will entitle the appellant for an additional sum of Rs.1,06,800/- (Rs.1,26,000 - Rs.19,200). Thus the appellant is entitled to get the total compensation enhanced by further sum of Rs.1,63,800/- (Rs.57000/- + Rs.1,06,800/-). In the result the appeal is partly allowed enhancing the total compensation of Rs.2,14,200/- awarded by the Tribunal by a further sum of Rs.1,63,800/-, which will carry interest @ 9% per annum from the date of the claim petition till payment. The 2nd respondent is directed to make payment of the amount within a period of 3 months. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb