IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 MACA.No. 826 of 2003 ------------------------------- O.P.M.V.NO.1125/1997 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/ 2ND RESPONDENT IN THE O.P: ---------------------------------------------------------------- UNITED INDIA INSURANCE CO. LIMITED, ALUVA, REPRESENTED BY ITS AUTHORISED SIGNATORY,UNITED INDIA INSURANCE CO. LIMITED. T.P.CLAIMS CELL,VETTUKATTIL BUILDINGS, M.G.ROAD,KOCHI-16. BY ADV. SRI.A.R.GEORGE. RESPONDENTS: ----------------------- 1. ROBER YULE AMON, S/O.R.E.LEONARD, HOUSE NO.16/197, NAZRETH ROAD,ALWAYE. 2. V.K.BINDU,D/O.KUMARAN,VELIYATH HOUSE, EDAYAPURAM, ALWAYE. BY ADV. SRI.ANIL S.RAJ FOR R1. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2008, ALONG WITH M.A.C.A NO. 212/ 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.A.C.A.NOS.826 OF 2003 & 212 OF OF 2004 ---------------------------------------------------- Dated this the 27th day of June, 2008. JUDGMENT Koshy, J: The award in O.P.(MV)No.1125/1997 is challenged by the claimants and the insurance company. The insurance company in M.A.C.A.NO.826/2003 contended that direction to deposit medical expense of Rs.40,000/= by insurance company is illegal as the above medical expenses are reimbursed by the bank. In fact original bills were not produced as they were submitted to the bank. The contention of the 1st claimant is that compensation awarded is very low and compensation for loss of earning capacity was not assessed in a scientific manner. It is also submitted that he was on leave for 131 days and leave wages were not granted except Rs.10,000/=. The total compensation awarded inclusive of medical reimbursement was only Rs.1,38,000/= against a claim of Rs.8 lakhs. 2. Firstly we will consider the claim in M.A.C.A.No.826/2003, the appeal filed by the insurance company. A statement showing an MACA.NOS.826/03 & 212/04 . 2 expense of Rs.40,000/= was produced by the 1st claimant and he also deposed that he spent Rs.40,000/= towards medical expenses. The Tribunal accepted the same and compensation granted was inclusive of reimbursement of medical expenses. The contention of the insurance company is that the amount was reimbursed by the employer bank where the claimant was employed, and as per the conditions of the contract, if amount is reimbursed by the insurance company the amount has to be repaid by the bank. Since amount was already reimbursed by the bank and actual original bills were not produced, Rs.40,000/= ought not have been awarded by the Tribunal as compensation. The above amount shall be deducted from the compensation awarded. Hence, M.A.C.A.NO826/2003 filed by the insurance company is to be allowed. 3 But the question of quantum of compensation is challenged by the claimant in M.A.C.T.No.212/04. The appellant was employed in a scheduled bank. His monthly income at the time of the accident was Rs.7,917/=. From this tax has to be deducted. As a result of the accident, he sustained very serious injuries. Wound certificate shows the following injuries: MACA.NOS.826/03 & 212/04 . 3 1. Right eye ocular movement restricted. 2. Corneal laceration. 3. Abrasion on the left foot. 4. sutured wound on the right upper eyelid and lower eyelid 5. X-ray showed the fracture dislocation on the right hip joint. Hip joint dislocation reduced. Left upper incisor tooth lost”. Ext.A6 series C.T. scan report showed oblique comminuted fractures of acetabular roof on the right side noted with the fractures extending to adjacent iliac bone. The CT scan of the right eye also showed the fracture of right orbit. Ext.A7 is the treatment certificate issued from the Lourdes hospital showing that he underwent open reduction and internal fixation for the hip fracture. He was laid up in the Lourdes Hospital for 57 days. Thereafter he underwent treatment in the Little Flower Hospital, Ankamaly for the injury to the eye. He was laid up there for 13 days from 9.1.1977 to 22.1.1997. Ext.A8 is the discharge summary from that hospital. It shows that the applicant has dipolpia. Ext.A9 is the report of the Ophthalmologist from the Little Flower Hospital, Ankamaly to the effect that the applicant has now dipolpia and that the vision of his right eye is reduced. Ext.A10 is the certificate issued from the said hospital. Ext.A11 is the discharge summary issued from Lourdes Hospital, Ernakulam. The applicant was again admitted in the Lourdes Hospital, Ernakaulam on 23.1.1997 and was discharged on 4.2.1997 as seen from Ext.A12 certificate issued from that hospital. Thereafter the applicant underwent treatment in Nagarjuna Ayurveda Hospital, Thodupuzha. He w as treated for five weeks in MACA.NOS.826/03 & 212/04 . 4 that hospital from 22.1.1997. Ext.A13 is the copy of the certificate issued from that Hospital from 22.1.1997. Ext.A14 is the certificate issued from the Sanjivani Ayurveda Hospital, Trivandrum which shows that he underwent treatment there from 20.3.1998 for about 37 days. Ext.A15 is the CT scan report dated 31.3.1998.. Ext.A16 series shows that he was admitted in the Anwar Memorial Hospital, Aluva on 26.4.2000 and was discharged on 29.4.2000 and treated therefore the dislocation of the right hip. Thereafter he underwent treatment at Amrutha Ayurveda Hospital, Aluva from 3.5.2000 to 18.5.2000 as seen from Ext.A17 certificate issued from that hospital. Ext.A18 is the certificate issued by the Ophthalmologist, Giridhar Eye Institute, Kadavanthra, Kochi. In that certificate the Ophthalmologist certified that the applicant underwent treatment there and that there is poor vision on the right eye of the applicant which is permanent. Ext.A19 is the disability certificate issued by the Eye Specialist, Ernakulam to the effect that the applicant has dipolpia on the right eye and his vision is reduced and that his usual disability is assessed as 35%. Ext.A20 is the certificate of disability issued from the Orthopedic surgeon stating that the applicant has a foot drop on the right side and there is painful limitation of right hip flexion and that the disability of the applicant is assessed at 14%. 4. Even though 40% disability was assessed by the Orthopaedic surgeon, the Tribunal awarded only Rs.30,000/= as lump sum compensation. We are of the opinion that Rs.30,000/= MACA.NOS.826/03 & 212/04 . 5 compensation awarded is very low. But the Tribunal found that the 1st claimant's employment was not lost but he is entitled for compensation for disability. As a result of the injuries and disability, he will be prevented from getting a future employment after his retirement. His promotional avenues are also lost but as a benevolent employer he is not removed from service. He has to carry the disability till his life. Therefore, considering the disability he was having and the long term treatment he underwent, we are of the opinion that at least Rs.50,000/= ought to have been granted by the Tribunal for disability, loss of earning power and consequences. Therefore, additional amount payable under this head will be Rs.20,000/=. He was on leave for 131 days. Even if it was adjusted from his eligible leave, he lost the benefit of getting that leave or leave encashment facility. The Tribunal ought to have granted at least 131 days leave wages, which will amount to Rs.30,000/=. The Tribunal has granted only Rs.10,000/=. So, the additional amount payable for loss of actual earnings will be Rs.20,000/=. Thus, total additional amount of compensation will be Rs.40,000/=. Hence, appeal filed by the claimant also is to be allowed. Rs.40,000/= granted for reimbursement of medical expenses has to be deducted. Hence, no change is required in the MACA.NOS.826/03 & 212/04 . 6 total amount awarded by the Tribunal. Both the appeals are disposed of accordingly. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl