IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 MACA.No. 571 of 2004() ---------------------- (O.P.(MV) NO.846/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA.) APPELLANT(S): APPELLANT/CLAIMANT IN OP(MV): ------------------------------------------- CHANDRASEKHARAN NAIR, S/O.DAMODARAN NAIR PALATHANATHU, CHIRAKKADAVU KIZHAKKUM BHAGAM KARA, KANJIRAPPALLY TALUK. BY ADV. SRI.THOMAS M.JACOB RESPONDENT(S): RESPONDENTS IN OP(MV): ------------------------------------- 1. K.R.PRAMOD, S/O. K.N.RAMACHANDRAN NAIR, PRASANTH HOUSE, PANACHILPPARA KARA,MEENACHIL TALUK 2. THE NEW INDIA ASSURANCE CO. LTD., PALA. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.A.C.A. No.571 of 2004 .................................................................... Dated this the 13th day of November, 2008. JUDGMENT Ramachandran Nair, J. Appeal is filed for enhancement of compensation for the injury sustained by the appellant in a road accident. We have heard counsel appearing for the appellant and Standing Counsel appearing for the Insurance Company. 2. The accident occurred on 30.5.1998 and according to the appellant, even after 10 years of protracted treatment with 8 months' hospitalisation intermittently, he is not in a position to move around freely and work to earn livelihood. The appellant was present in court and we had occasion to see his condition particularly, the damage to leg, in the presence of counsel for the appellant and counsel for the Insurance Company. We are convinced that the percentage of disability certified is only an underestimation and the appellant is really not able to earn livelihood with physical work. At the maximum he can sit and do some sedentary work. He was a tailor by profession 2 and was partly engaged in rubber tapping. Counsel contended that income fixed at Rs.1,800/- per month for the purpose of awarding compensation for disability is very low. Counsel appearing for the Insurance Company submitted that the appellant got compensation under two heads namely, one for disability and the other for loss of earning power which cannot be simultaneously granted as per Full Bench decision of this court in ORIENTAL INSURANCE COMPANY LTD. V. HARIPRASAD (2005(4) KLT 977). We agree with this proposition and hold that appellant will not be entitled to separate compensation for loss of earning power after availing compensation for permanent disability. Therefore, the award of Rs.40,000/- towards loss of earning power is deleted. However, enhancement of compensation for permanent disability is called for because as a person engaged as a tailor and simultaneously as a rubber tapper which is a part time job in the morning, appellant would have been able to earn atleast Rs.3,000/- per month. Going by the multiplier 11 and applying the same 3 percentage of disability i.e. 53%, appellant will be entitled to compensation for disability at Rs.2,09,880/-(3000 x 12 x 11 x 53/100). 3. The appellant has filed I.A. No.3086/2008 for acceptance of additional evidence for claiming compensation for expenses incurred for treatment subsequent to the award. The total amount is Rs.10,395/-. On seeing the condition of the appellant's leg, we do not find any ground to disbelieve the subsequent treatment and expenses incurred. We, therefore, enhance the compensation by Rs.10,395/- representing additional cost incurred for treatment. On account of enhancement of income and since the appellant was in the hospital for 8 months, we estimate the loss of employment for 12 months and as against Rs.12,600/- granted by the MACT for loss of earning during the period of treatment and recoupment, appellant will be entitled to Rs.36,000/-. Consequently enhancement under this head will be Rs.23,400/-. Considering the disability which is permanent in nature, we grant a sum of Rs.50,000/- for disfiguration and loss of enjoyment 4 in life and towards future medical expenses. The additional compensation granted by us will carry interest at 7.5% p.a. from date of application till date of payment. The appeal stands allowed to the above extent. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms