IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 MACA.No. 1379 of 2005() ---------------------------------- OPMV.722/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER. --------------------- CHACKO VARGHESE @ GEORGE KUTTY, PALAKKUNNEL HOUSE, RUBBER BOARD P.O. PUTHUPPALLY, KOTTAYAM. BY ADV. SRI.THOMAS ANTONY SRI.TITUS MANI RESPONDENTS: ----------------------- 1. GOPINATHAN NAIR, S/O.KUNJUMMA PILLAI, THEKKEPANAMKUNNEL, WARD NO. II, KULLAKKADA, KOLLAM. 2. K.S.R.T.C. TRIVANDRUM. 3. THE NATIONAL INSURANCE CO.LTD., TRIVANDRUM. BY ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC - R2 SRI.RAJAN P.KALIYATH - R3 SRI.JOHNSON P JOHN,SC KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.A.C.A.No.1379 OF 2005 ------------------------------------- Dated 29th May, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident on 13.12.2001. He claimed a compensation of Rs.4,50,000/=. Even though Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the third respondent insurance company, the total compensation awarded was only Rs.91,082/=. Quntum of compensation alone is disputed in this appeal. Ext.A5 is the wound certificate which shows the following injuries: “1. Abrasion left fore-head. 2. Lacerated wound dorsum of foot 5x4cm and 3. Lacerated wound 8x5cm anterior aspect of the lower third of right leg exposing tibia.” X-ray investigation revealed fracture of tibia and fibula of right leg. Ext.A6 series are discharge card issued from Medical College Hospital, Kottayam. Appellant remained hospitalised initially from 13.12.2001 to 7.1.2002 during which period he was treated by external skeletal fracture and repeated dressing as well as SSG and supportive drugs. He was readmitted on 23.5.2002 and remained hospitalised till 6.6.2002 for MFA.1379/2005 2 non-union of tibia and infectious wound. Partial fibulactomy, bone grafting etc. were done. In view of the malunited fracture of the right leg with anterior bowing, partial ankylosis with restriction in movement of right ankle and shortening of leg, the doctor certified 15% permanent disability. Tribunal found that he availed loss of pay leave for 12 months from 13.12.2001 to 1.1.2003. His salary as can be seen from Ext.A10 certificate is as follows: “Piece Rate : Rs.3,826 Prod. Piece Rate : Rs. 483 DA : Rs.1,467 Other Allowances : Rs.1,521 -------------- Rs.7,297 Employers Share of EPF Contribution : Rs. 729 -------------- Rs.8,026 ======” Only the basic salary of Rs.3,826/= was taken into account by the Tribunal for calculating actual loss of wages. Even though he was on leave for 12 months, only Rs.18,000/= was granted under that head as medical certificates were not produced to that effect. But, certificate shows that he was on loss of pay leave for 12 months consequent to the accident. Even DA and compulsory allowances were not taken into account. DA alone was Rs.1,467/=. That is apart from other allowances and production allowance based on piece rate. MFA.1379/2005 3 In the above circumstances, at least Rs.1,500/= ought to have been added to the monthly salary taken by the Tribunal. We fix Rs.5,300= as monthly income and, hence, the appellant will be entitled to Rs.63,600/= under that head. After deducting Rs.18,000/= granted by the Tribunal, appellant will be entitled to Rs.45,600/= more for loss of actual earnings. With regard to the permanent disability, Tribunal did not grant any compensation on a multiplier method, but, awarded only Rs.25,000/= for disability and injury. Appellant has suffered 15% disability according to Ext.A8 disability Certificate. Ext.A11 shows that he was degraded. The certificate issued by the Company reads as follows: “This is to certify that Mr.Chacko Varghese, Tno.694 is employed in our factory as a workman. He has been working here w.e.f. 10.05.1995. He met with a road accident on 13.12.2001. Due to this he was on leave on loss of pay from 13.12.2001 to 01.01.2003. Prior to the accident he was doing Tyre Building jobs (Grade 1). After treatment and rest he has produced a Medical Certificate to the effect that he is fit to resume duty (preferably light work) from 02.01.2003, vide Medical Certificate from Medical College Hospital, Kottayam dated 31.12.2002. He is now doing lower grade jobs.” Since he continued to be employed, we are not calculating compensation on a multiplier method. But, he had to continue his life with difficulties and there was degrading of his services and MFA.1379/2005 4 reduction in salary. He was aged 41 at the time of the accident and 15 is the apt multiplier. If monthly income of Rs.5,300/= is taken and 15 is taken as the multiplier, a huge amount will be payable (Rs.1,43,100/=). But, since he was continued to be employed, though in a lower grade, compensation need not be paid on a multiplier method. But, we are of the opinion that Rs.25,000/= granted for permanent disability and loss of earning capacity is very low and he is entitled to Rs.35,000/= more for permanent disability and loss of earning capacity. Thus, the appellant will be entitled to Rs.80,600/= more than that was awarded by the Tribunal. Even though it is contended that compensation granted under other heads are very low, considering the total amount awarded, we are not enhancing the same. The above amount of Rs.80,600/= should be deposited by the third respondent insurance company with 7% interest from the date of application till its deposit, over and above the decreed amount by the Tribunal. On deposit of the amount, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE MFA.1379/2005 5 tks