IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 MACA.No. 45 of 2003() --------------------- OPMV.735/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/ORIGINAL PETITIONER: ------------------------------------------------------- SURESH BABY T.K., 33 YEARS, S/O.T.V.BABY, RESIDING AT THYKODATH HOUSE, THAMARACHALPURAM KARA, KIZHAKAMBALAM VILLAGE. BY ADV. SRI.V.K.ISSAC SRI.K.K.APPU SRI.ISAC SANJAY RESPONDENTS: RESPONDENTS: ------------------------------------------------- 1. RAJENDRAN NAIR, RESIDING AT REJI VILASM, EAST MARADY P.O., MOOVATTUPUZHA. 2. CHANDY, S/O.JOSEPH MYLAPARAMBIL HOUSE, CHERUTHODI KARA, IDUKKI VILLAGE, IDUKKI DISTRICT. 3. THE ORIENTAL INSURANCE CO.LTD BRANCH OFFICE, SHAAN COMPLEX, 1ST FLOOR, BAZAR ROAD, MATTANCHERY, COCHIN-2. ADV. SRI.V.P.K.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- M.A.C.A. No. 45 of 2003 --------------------------------------- Dated this the 7th day of July, 2008 Judgment Koshy,J. Appellant/Claimant sustained injuries on 8.5.1995 in a motor accident. The tribunal awarded an amount of Rs.87,300/- with 9% interest from the date of application against a claim of Rs.2,25,000/-. Only quantum of compensation is disputed in this appeal. 2. Claimant was an employee in FACT. Ext.A12 salary certificate shows that his monthly salary was Rs.6,374.65 in 1997. The accident occurred in 1995. Therefore, tribunal fixed Rs.4,000/- as the monthly income. As far as the injury is concerned, there was compound fracture on upper part of right leg with avulsion of patella tendon, the right knee joint was opened out in front and contusion left periorbital region. The tribunal found as follows: "It is proved by medical records that in the accident he sustained large lacerated wound 10 c.m. x 4 c.m. anteriorly on the upper 3rd of right leg with multiple punctured wounds on right knee anteriorly with blood oozing a 6 c.m. x 2 c.m. lacerated wound on upper 3rd of right leg anterio medially. Ext.A6 is a wound certificate- M.A.C.A.No.45/2003 2 cum-discharge certificate issued from the Medical Mission Hospital, Kolenchery which would indicate that the petitioner sustained a Gr.III compound fracture on upper part of right leg with avulsion of patella tendon, the right knee joint was opened out in front, contusion left periorbital region. Ext.A6 which would further indicate that the petitioner was admitted in the hospital on 8.5.1995 and was discharged on 4.7.1995. Ext.A7 is a treatment certificate issued from the Medical Mission Hospital, Kolenchery and he was subjected to emergency wound debridement, reduction and internal fixation of fracture on 8.5.1995. Subsequently on 20.5.1995 the wound was covered with muscle flap. On 31.5.1995 split skin grafting was done on right leg and regular wound dressings were carried out and he was further reviewed in OPD on 29.7.1995, 31.8.1995, 19.9.1995, 21.10.19195 and 4.11.1995." Considering the difficulties, the tribunal awarded Rs.20,000/- as compensation for pain and suffering. Claimant was not able to work for about six months due to the injuries. Medical certificate was also produced. Only Rs.10,000/- was awarded towards loss of leave salary and loss of earnings. According to the claimant, he was on loss of pay leave due to the accident. In any event, even if the leave was adjusted in the privilege leave, he lost the privilege of encashment or taking the leave subsequently. We are of the opinion that compensation ought to have been awarded for loss of additional earnings amounting to Rs.24,000/- (Rs.4,000/- x 6). Only M.A.C.A.No.45/2003 3 Rs.10,000/- was awarded under this head. Therefore, claimant is entitled to Rs.14,000/- on account of actual loss of earnings. It is contended that even though 40% disability was certified for stiffness to right knee, weakness of right quadricaps muscles and disfigurement of right leg, the tribunal has awarded compensation only for 15% disability. Further, since he continued his employment, only 8 was taken as the multiplier. He was aged 33 at the time of application. Correct multiplier as per second schedule will be 16. Further, monthly income was taken only as Rs.2,000/- after retirement. It is contended by the claimant that he lost an opportunity of getting employment after retirement, but, there is no clear evidence to that effect. In view of the serious nature of injuries, he will not be able to work after the retirement also. He is a qualified electrician. So, after retirement also, he could have continued in employment and, therefore, he might have got Rs.3,000/- per month. He has to suffer the difficulties throughout his life and he can work only with the difficulties. Taking into account all these things, we are of the view that Rs.16,000/- more should have been awarded for permanent disability and loss of earning power. Thus, claimant is entitled to get an amount of Rs.30,000/- more than that is awarded by the tribunal. The above M.A.C.A.No.45/2003 4 amount of Rs.30,000/- should be deposited by the third respondent insurance company with 7.5 % interest from the date of application till its deposit. On deposit of the amount, appellant is allowed to withdraw the same. J.B.Koshy Judge P.N.Ravindran Judge vaa M.A.C.A.No.45/2003 5 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- M.A.C.A. No. 45 of 2003 ------------------------------------- Judgment Dated:7th July, 2008