IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 MACA.No. 645 of 2006() ---------------------- OPMV.146/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER ------------------------------------- T.D.MATHEW, S/O.DEVASSIA, THOLANIKKAL HOUSE, P.O.KOOMANTHODE, VIA.IRITTY, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: RESPONDENT NO.3. ----------------------- THE ORIENTAL INSURANCE CO. LTD., KANNUR. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy & Thomas P. Joseph, JJ. -------------------------------------- M.A.C.A. No. 645 of 2006 --------------------------------------- Dated this the 20th day of August, 2008 Judgment Koshy,J. Appellant/Claimant at the age of 38 years, sustained very serious injuries in an accident on 29.3.1999. He claimed a compensation of Rupees Six lakhs. The Tribunal awarded an amount of Rs.28,000/- with 6% interest per annum from the date of application and directed that the amount be recovered from the third respondent insurance company after finding that the accident occurred due to the negligence of the second respondent driver of the vehicle owned by the first respondent and insured by the third respondent insurance company. The only dispute is regarding the quantum of compensation. 2. The appellant sustained injuries at the age of 38. Taking guidance from the second schedule, 16 can be fixed as the multiplier though it was contended that since he had 20 more years of service at the time of accident and as he lost his employment, 20 ought to have been fixed as the multiplier. As regards the injuries M.A.C.A.No. 645/2006 2 are concerned, he had fracture of scapula right and compound fracture of tibia and fibula (right). The Tribunal considered the medical certificate and observed as follows: "13. The injuries sustained by the petitioner herein recorded in Ext.A5 are fracture both bones on right leg. Ext.A8 would reveal that the petitioner herein had fracture of tibia and fibula (right). This was recorded on 29.3.1999. But it is also seen recorded, though without a date, that he has been in treatment for 6 months and is due for review. He was complaining of swelling of right leg and ankle while standing for some time and that his general condition was normal. His right leg was well healed and there was no limb shortening. The X-ray investigation shown consolidated fracture of mid shaft right tibia along with consolidated fracture proximal fibula and non- united fracture of mid fibula. He was advised active ankle exercises and for review before Medical Board. Ext.A15 is the report of the Medical Board. It is seen from Ext.A15 that he had been posted on low medical category for treatment for one year and three months. Considering the fracture and his age he would have required 48 weeks rest for union of the fractured bones and consolidation." According to the Tribunal, no disability certificate was produced, but, that is not correct. Ext.A9 is the photostat copy of the proceedings of the Medical Board. It would reveal that his principal disability is compound fracture, tibia and fibula (right) and he was recommended for the category of A3 (permit) of 'SHAPE' factor. He M.A.C.A.No. 645/2006 3 was placed in CMC A3 (Permit) of SHAPE factor with effect from 2.11.2000. The above certificate also shows that percentage of disability is 30%. Ext.A7 discharge slip issued by the Military Hospital dated 15.9.2001 would reveal that he was placed in low medical category to stay in unit line till approval from DDMS headquarters. Ext.A14 is the discharge certificate which shows that since he was placed in the low medical category for one year, he was discharged from service due to disability by order dated 30.6.2001. Effective date of discharge was 30.11.2001. Ext.A14 certificate was not considered by the Tribunal. It is the contention of the appellant that he is entitled to 100% loss of earning capacity and because of the disability, he lost his job and he is unable to get a job at this distance of time. He had a further case that at the time of accident, he was about to be promoted as Subaidar and he lost the promotional avenues. He had 20 more years of service. If he had continued in service, taking the entire period of service his salary would have been ten times higher than that was received by him at the time of accident because of the periodical pay revisions and promotional avenues. He is getting military pension on the basis of the pay of Hawildar he was receiving at the time of discharge. Considering the fact that he was getting military M.A.C.A.No. 645/2006 4 pension, that there was likelihood of normal promotion and also considering his retirement age and he lost job as a consequence of the accidental injury and medical board certified 30% disability, we are of the opinion that at least compensation should have been awarded for 20% permanent disability. At the time of accident, appellant was a Hawildar and was getting an amount of Rs.6,300/- per month. It is his case that if he had continued in service, he would have been promoted as a Subaidar and there will be chances of further promotion also. At the time of discharge, his monthly income was Rs.6,300/-. Considering the normal benefit of wage revisions and other prospects etc., a higher monthly income could have been fixed for the purpose of calculation of compensation. If that be so, compensation payable for permanent disability and loss of earning capacity will be Rs.5000 x 12 x 16 x 20 = Rs.1,92,000/-. 100 It is contended that compensation granted for pain and suffering and for loss of amenities etc. are very low, but, considering the total amount granted, we are not enhancing the same. The above additional compensation of Rs.1,92,000/- should be deposited by the third respondent insurance company with 7.5 % interest from the date of application till its deposit over and above the M.A.C.A.No. 645/2006 5 compensation decreed by the Tribunal. On deposit of the above amount, appellant is allowed to withdraw the same. The appeal is allowed partly. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.A.C.A.No. 645/2006 6 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.A.C.A. No.645/2006 ------------------------------------- Judgment Dated:20th August, 2008