IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 MACA.No. 486 of 2003() -------------------------------- OPMV.327/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER IN OP(MV) --------------------- RAMAKRISHNAN, PUTHUKATTIL HOUSE, PADIYOOR P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: RESPONDENTS 2, 3 & 7 IN OP(MV) ---------------------- 1. SUKUMARAN, S/O.SHANMUGHAN, MULLASSERY HOUSE, EDATHIRUTHI P.O. 2. UNITED INDIA INSURANCE CO., ALENGADAN BUILDING, IRINJALAKUDA. 3. BHAVANA, W/O.SREENIVASAN, KOOVOLIL HOUSE, NILAMPATHY, PADIYOOR P.O. BY ADV. SRI.A.C.DEVY FOR R3 SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008 , THE COURT ON THE SAME DAY THE FOLLOWING: J.B.KOSHY & K.P.BALACHANDRAN, JJ. ------------------------------- M.A.C.A.NO.486 OF 2003 (B) ----------------------------------- Dated this the 4th day of August, 2008 J U D G M E N T KOSHY,J. Appellant/claimant sustained injuries in a motor accident and he claimed compensation of Rs.5,00,000/-. Tribunal awarded an amount of Rs.64,000/- with interest and directed the 3rd respondent Insurance company (2nd respondent in the appeal) to deposit the amount as it was found that the driver of the vehicle insured by the above Insurance company was responsible for the accident. Only dispute is regarding the quantum of compensation awarded. 2. According to the appellant, he was employed in Oman and incident occurred during his leave period. His monthly income was RO.450/- (exchange rate at the time of accident is stated to be Rs.96.15). With regard to the injuries, tribunal found as follows: “Ext.A5 wound certificate was issued from the West Fort Hospital, Thrissur. Ext.A6 is a MACA.486/2003 2 medical certificate issued from the same hospital. In the accident, he sustained fracture to the maxilla with palatal split. 6 teeth were loosened. 2 teeth were lost. Later 6 teeth were extracted and wiring for the maxilla was done. After the wiring he was unable to open his mouth for 6 weeks and the wires were removed after 6 weeks. As per Ext.A6, 5% permanent disability due to the facial injury was assessed by the doctor. Ext.A7 is the discharge summary from the West Fort Hospital, Thrissur. He had an inpatient treatment there for 10 days. The main injury was to the teeth and facial bones.” Tribunal did not award any compensation for permanent disability because the disability might not have affected his employment. He also produced employment certificate Ext.A8 to show that he rejoined duty on 4.8.1997. Tribunal awarded Rs.10,000/- for disfiguration and for loss of amenities, Rs.4,000/- was awarded. Since he has rejoined duty, we are of the view that no separate compensation can be awarded for loss of earning power due to permanent disability though he has to suffer the difficulties through out his life. Medical bills were reimbursed. It was contended that even the leave wages are not denied. Ext.A8 certificate reads as follows: “This is to confirm that our staff, Mr.P.K.Ramakrishnan (PP No.3378851) MACA.486/2003 3 proceeded on leave on 3rd May 1997 and whilst he was travelling in a car in Kerala he met with an accident on 16th May 1997. Following this accident he had to undergo medical treatment from 16th May 1997 to 3rd August 1997 in Kerala and he returned to work on 4th August 1997. His basic salary at the time of accident was RO.450/- (Rials Omani Four Hundred and Fifty) excluding other allowances and facilities. His total loss of pay during this period due to the above accident is RO.450 x 21/2 months RO.1,125/- (Approximately Indian Rupees 108,173/- calculating the then exchange rate at 1 RO = Rs.96.15).” Tribunal accepted the certificate for the purpose that he rejoined duty on 4.8.1997, but at the same time, it is found that it was not proved properly and also found that he cannot be granted leave wages at the rate he was earning in Gulf. In a claim under 166, tribunal has to award compensation for offsetting the loss suffered to the claimant. This Court in United Insurance Co. Ltd. v. Patricia Jean Mahajan and others (JT 2002 (5) SC 74) held that the exchange rate at the time of accident should be taken into account while calculating compensation. According to the certificate, he lost RO.450/- per month for 21/2 months, as he was under treatment from 16th May 1997 to 3rd August 1997. He came MACA.486/2003 4 to Kerala on 3.9.1997 and he must be on leave for atleast one month. Therefore, as held by the tribunal, he is entitled to two months income as the income lost to him due to the accident. If that be so, it will be Rs.86,535/- (RO.450 x 2 x 96.15) taking the exchange rate at the time of accident. Tribunal has awarded only Rs.10,000/-. So, claimant will be entitled to Rs.76,535/- more than that is awarded by the tribunal for actual loss of earning during the period of treatment and loss of pay leave. Even though it is stated that compensation awarded under other heads are very low, considering the facts and circumstances, we are not enhancing the same. The above amount should be deposited by the 2nd respondent Insurance company with 7.5% interest from the date of application till its deposit over and above the amount decreed by the tribunal, and, on deposit of the amount, appellant is allowed to withdraw the same. Appeal is partly allowed. J.B.KOSHY, JUDGE K.P.BALACHANDRAN, JUDGE prp MACA.486/2003 5 J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 4th August, 2008