IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH DECEMBER, 2008 / 26TH AGRAHAYANA, 1930 MACA.No. 715 of 2006 ( OP(MV).102/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD) .................... APPELLANT/PETITIONER: ------------------------------------- A.P.VINODH @ BABU, S/O.VELAYUDHAN NAIR, M INI VILLA, PATHUR AMSOM, PALAKKAD. BY ADV. SRI.P.N.PURUSHOTHAMA KAIMAL RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. SHAJAHAN, S/O.MOIDEEN RAWTHER, KASBA CHITTILANCHERI, ALATHUR, PALAKKAD. 2. UMMAR, S/O.SAIDALI, KALLATHANI HOUSE, CHITTIALNCHERI, ALATHUR, PALAKKAD. 3. UNITED INDIA INSURANCE CO.LTD, 10/290, G.B.ROAD, P.B.NO.61, PALAKKAD. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2008 , THE COURT ON 17/12/2008 DELIVERED THE FOLLOWING: J.B.KOSHY,Ag.C.J. & V.K.MOHANAN, J. --------------------------------------------- M.A.C.A.No. 715 of 2006 C --------------------------------------------- Dated this the 17th day of December, 2008 J U D G M E N T Koshy,Ag.C.J.: The appellant sustained injuries in a motor accident. He filed a claim petition before the Motor Accidents Claims Tribunal, Palakkad claiming an amount of Rs.8,69,000/-. The Tribunal awarded an amount of Rs.1,81,750/- inclusive of the medical reimbursement towards actual medical expenses incurred by him. The Tribunal found that the accident was caused due to the negligence of the first respondent who was the driver of the car which was insured with the third respondent—Insurance Company and the third respondent was directed to deposit the compensation amount with interest. The only dispute is regarding the quantum of compensation. At the time of accident, he was only 32 years old. He was a Constable in the Railway Protection Force and his monthly income at the time of accident was Rs.2746/-. It is the contention of the petitioner that as a result of the accident, he was unable to do the same job as he was doing earlier, but being a Government servant, he was given work MACA NO.715 of 2006 :-2-: as Peon and there is reduction in his salary. Apart from the above, he lost the prospects for promotion. It is further submitted that even though the Constables after retirement get a job as Security Officer etc. he had lost the chance of getting the job after his retirement due to the accident. 2. With regard to the injuries sustained, the Tribunal has considered the wound certificate and other medical certificate and Pws.2 to 4 were examined and proved the documents. Paras 15 to 21 of the award reads as follows which shows the disability incurred by him:- “15. Issue No.3: Ext.A7 is the copy of the wound certificate issued to the petitioner from the Dt.Hospital, Palakkad. The injuries noted in Ext.A7 document are: “Abrasion 2x2 cm on the nose; Lacerated wound middle of upper lip underlying incissors lost; maxilla fracture; Lacerated wound 2x1 cm with underlying bone fracture; Lacerated wound 3x2 cm on the outer surface of the right foot; near big toe; Lacerated wound 3x.5 cm on inner aspect of right ankle; underlying the bone fracture; Lacerated wound 4x1 cm right heel; Multiple lacerated wound 10x5 cm just below right knee; Abrasion 6x0.5 cm just below right elbow”. MACA NO.715 of 2006 :-3-: 16. Ext.A8 is the certificate issued by Dr.Thanakaraj, West Fort Hospital, Thrissur. In Ext.A8 it is noted as follows: “Mr.Vinod had undergone treatment for his fracture maxilla, mandible and nasal bone. In future, he requires artificial tooth in place of 4 incisors in the upper jaw.” The doctor has certified that the petitioner is having 10% permanent disability due to loss of 4 incisors on the upper jaw”. 17. While examined as PW2 the doctor who issued Ext.A8 certificate has stated that as per Ext.A8 the percentage of permanent disability is assessed at 10%. PW2 has stated that after the operation the petitioner could not open his mouth for 6 weeks. He could take only liquid food during that period. The doctor has stated that for correcting the disfiguration of the face maxillo facial surgery has to be performed. According to PW2, the cost for performing maxillo facial surgery is between Rs.70,000/- 80,000/- PW2 has stated that the disability noted in Ext.A8 certificate will not affect his earning power. The doctor has also stated that at Trivandrum Medical College hosptial, facility for maxillo facial surgery is available and the expenses will be much less than that he has deposed earlier. 18. Ext.A9 is the certificate issued by Dr.V.I.Simon, Orthopaedic Surgeon attached to the West Fort Hospital, Thrissur. In Ext.A9, it is noted as follows:- “Mr.Vinod is under treatment from this hospital from 21.5.95 onward following MACA NO.715 of 2006 :-4-: alleged Road Traffic accident. He had sustained the following injuries. 1) subluxation of right knee; 2) sprain of right ankle and foot; 3) Fracture of maxilla and mandible; 4) contusion of brain –He was treated by fixator of the maxilla and mandible by wire-fixation. Knee and ankle injuries were treated conservatively. How he has got instability in the right knee and pain and stiffness in the right ankle and foot.” The doctor has certified that the petitioner is having the following difficulties: “1) Temporary 100% disability for 1st 2 months; 2) Temporary 50% disability for next 4 months; 3) Permanent partial disability of 15% due to knee instability and ankle stiffness.” 19. While examined as PW4, the doctor who issued Ext.A9 has stated that the disability assessed as per Ext.A9 is whole body disability. The doctor has also stated that the subsequent treatment by way of physiotherapy will not reduce the disability. 20. Ext.A10 is a certificate issued by Dr.George Kovoor of West Fort Hospital, Thrissur, Thrissur. In Ext.A10 it is noted that the petitioner had sustained fracture base of skull, diffuse oedema and SAH and lefront fracture type III. According to the MACA NO.715 of 2006 :-5-: doctor, the petitioner was having 100% temporary disability for 1 month; 80% temporary disability for 2 months; 60% temporary disability for next months; 40% temporary disability for 6 months and having permanent disability of 20% neurologically and is unable to join back his job. 21. The doctor who issued EXt.A10 certificate was examined as PW3. He has stated that even now the petitioner is continuing treatment. According to PW3, the petitioner is having memory loss, severe behavioural abnormality, fight at home, goes into rage of anger; lack of concentration at work. PW3 has stated that the petitioner is now taking medicine for preventing fits. PW3 has stated that the disability noted in Ext.A10 is only neurological disability and with the said disability, it is not possible to perform the job he was doing earlier due to memory loss. According to PW3, the petitioner has to continue life long treatment for the behavioural abnormality.” EXts.A8,A9 and A10 documents show that the Dental Surgeon, Orthopaedic Surgeon and Neurosurgeon have issued independent certificates assessing disability at 10%, 15% and 20% respectively (total 45% disability). Ext.A11 is the discharge summary issued to the petitioner from the Aravind Eye Hospital, Madurai. The medical certificate also shows that he continued the treatment. A13(a) is the copy of the order issued by the MACA NO.715 of 2006 :-6-: Divisional Officer, Southern Railway, Palakkad wherein he was found medically unfit for continuing the original post and he was posted as Peon in the pay scale of Rs.750-940 on alternative capacity. Therefore, there is reduction in his monthly income. EXt.A13 (a to c) would show that the appellant could not continue to work as Constable. Ext.A13(c) document reveals that he was working as Constable in the RPF in the pay scale of Rs.825- 1200/-. Since he was medically unfit to work in the post of Constable, he was reverted to the post of Peon and there was considerable reduction in the pay scale also as can be seen from Ext.A13(c). While examined as PW1, the appellant has stated that as a result of the injuries sustained in the incident, he has become unfit to continue in the post of Constable in the RPF. He had also stated that due to reversion to the post of Peon, there was salary loss of Rs.1000/- per month. He had also stated that his promotion prospects were reduced as a result of the disability caused to him. The Tribunal has taken only 30% disability and the monthly income was taken as Rs.1250/- and thus awarded compensation for permanent disability and loss of earning capacity. We note that he lost all the chances for getting employment after retirement. Therefore, it is true that he MACA NO.715 of 2006 :-7-: continues employment in a lower cadre. Future prospects in life also should be considered at the time of accident. At the time of accident, his salary including D.A. was Rs.2750/-. 3. In the above circumstances, we are of the view that a compensation ought to have been granted taking Rs.2500/- as the monthly income. Considering the age of the appellant as 32 years, the multiplier is taken as 17 taking guidance from the 2nd Schedule. Even though he is unable to do the work as Constable, instead of granting 45% disability, the Tribunal had only granted 30% disability. We see no reason to change the same. If that be so, the compensation payable for permanent disability and loss of earning capacity will be Rs.2500 × 12 × 30÷100 × 17 = Rs. 1,53,000/-. The Tribunal has granted only Rs.76,500/- under this head. Therefore, the additional compensation payable will be Rs.76,500/-, for loss of disability and earning power. The Tribunal found that the claimant was unable to do any work and he was on leave for seven months. Even though it was claimed that his wife had taken on leave for attending him, the compensation for attendant benefits was not granted. Since he was on seven months treatment and his wife had lost the income for the above period, we are of the view that MACA NO.715 of 2006 :-8-: at least Rs.7000/- should be granted for loss of wages for not attending the office. It is contended that even though towards medical expenses incurred, the petitioner has claimed Rs.75,000/-, considering the medical bills produced by the appellant, the Tribunal awarded only Rs.35,000/- towards compensation for medical expenses incurred. It is also contended that towards future medical expenses, the Tribunal had only awarded Rs.10,000/- as compensation and higher amount ought to have been granted. Considering the total amount granted, we are not enhancing the compensation under other heads. An additional amount of Rs.83,500/- (Rupees Eighty Three Thousand Five Hundred only) over and above the amount decreed by the Tribunal should be deposited by the third respondent/insurance company with 7.5% interest from the date of application till the deposit. The appeal is allowed as above. J.B.Koshy, Acting Chief Justice. V.K.Mohanan, MBS/ Judge MACA NO.715 of 2006 :-9-: K.BALAKRISHNAN NAIR & V.K.MOHANAN, JJ. -------------------------------------------- W.P(C).NO. OF 200 -------------------------------------------- J U D G M E N T MACA NO.715 of 2006 :-10-: DATED: -12-2008 MACA NO.715 of 2006 :-11-: