IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 MFA.No. 680 of 2002() --------------------- MVOP.1495/1997 of M.A.C.T.,ATTINGAL .................... APPELLANT: 1ST RESPONDENT: -------------------------- THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM. BY ADV. SRI.K.PRABHAKARAN,SC KSRTC RESPONDENTS: PETITIONER & 2ND RESPONDENT: ----------------------------------------- 1. GOPI PUTHUVALVILA VEEDU, KURAKKADA P.O., KIZHUVILAM. 2. RAJENDRAN, S/O.BHASKARAN PILLAI, PANDIYANPARA, ANAD. BY ADV. SRI.S.V.PREMAKUMARAN NAIR FOR R1 SRI.R.T.PRADEEP FOR R1 SMT.PARVATHY RAJESH FOR R1 SRI.V. VIJULAL SRI.T.A. PRASANTH THIS MISC. FIRST APPEAL HAVE COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4008/2002 IN MFA.NO.680/2002 DISMISSED SD/= J.B. KOSHY, JUDGE. 01.09.2008. SD/= THOMAS P. JOSEPH, JUDGE. /TRUE COPY/ cl J.B. KOSHY & THOMAS P. JOSEPH,JJ. ------------------------------------------- M.F.A.NO.680 OF 2002 ------------------------------------------ Dated this the 1st day of September, 2008. JUDGMENT Koshy, J: The first respondent/claimant sustained serious injuries in a motor accident. The Tribunal found that the accident occurred due to the negligence of the driver of the appellant's vehicle. The appellant was directed to deposit the compensation awarded. The total compensation awarded including medical reimbursement was Rs.3,16,702/= with interest at 12% per annum. It is submitted that finding of negligence on the part of driver of the appellant was not correct. But the Tribunal noticed that the bus was on the wrong side. The claimant was examined as PW1 and he was not cross examined and no counter evidence was adduced. Ext.A3 scene mahazar, Ext.A1 F.I. Statement and Ext.A6 final report also show negligence on the part of the driver of the vehicle. Therefore, we see no ground to interfere with the finding of negligence. The second aspect is with regard to the quantum of compensation. Firstly it is submitted that 20% disability was accepted by the Tribunal without examining the doctor. But, Ext.A11 medical MFA.680/2002 . 2 certificate shows that the first respondent had 25% disability. With regard to the injuries are concerned, the Tribunal has discussed in paragraph-7 of the award as follows: "Ext.A5, the wound certificate of the victim shows that he has extensive lacerated crush injury on the right leg extending from upper third to the joint above ankle, whole of tibia exposed with fracture at lower third, lacerated wound 8x3 front of knee and fracture patella (Rt) and X-ray showed fracture of right patella and communited fracture of both bones of right leg. PW1 would say that he was admitted 4 times in the Medical College Hospital and treated there as inpatient for a total period of 81 days, the two O.P. cards were surrendered in that Hospital and then the other two cards were issued and photo copies of the first two cards are produced as evidence. Ext.A7 shows the admission of PW1 there on 7.1.98 and discharge on 10.1.98 for llizarov fixation due to the fracture of both bones. Ext.A8 O.P card shows that he was admitted on 10.2.98, and discharged on 14.2.98 for illizerov removal and on 13.2.98 cast was applied and thereafter he attended the O.P on 20.2 and 3/3, and on that day caliper shoe was advised. Ext.A8(a) shows his admission of 18/11 and discharge on 6.12. Ext.A8(b) and A8(c) are the O.P. cards showing his attendance in the Medical College Hospital on 20.9.99,20.1.2000,10.1,25.5.98, 30.7.88 etc. Ext.A9 is a card issued from the Physiotherapy (O.P) Department of the Medical College Hospital showing the petitioner's attendance thereon 18 occasions starting from 15.8.98 to 15.1.99. Ext.A11 is a certificate issued by the Professor and Head of P.M.R department of Medical College Hospital stating that the petitioner w as referred to that department for rehabilitation MFA.680/2002 . 3 treatment on 15.8.98 for the injuries sustained in this accident with multiple soft tissue injuries and segmental fracture of both nones of leg, he was treated in the Medical College Hospital with external fixture for the fractures, lateron with skin grafting and plaster of paris immobilisation, he was placed on physical therappy for improvement of range of motion, muscles setting and for gait training, and on review on 14.12.98 has assessed 25% disability for the reason shown therein detail." The Tribunal also saw the claimant in person and observed as follows: "During trial while in the box the petitioner has showed his right leg by removing the bandage and caliper shoes. That leg almost from the foot to the knee is ugly looking with deep adherent black scars with lot of muscle wasting. He is even now on stick and caliper shoe. Being a man of 45 his amenities in future life is considerably reduced by this tragic accident." In these circumstances, we are of the view that 20% disability assessed by the Tribunal needs no interference. 2. Finally it is pointed out that the claimant has to retire from service on 31.3.2007 and his monthly income was Rs.4,561/= at the time of the accident. But considering the future wage revision, Rs.7090/= was taken as his salary for ten years and at Rs.3,550/=, for the remaining three years. We are of the view MFA.680/2002 . 4 that the above calculation is totally incorrect. It is true that he sustained serious injuries. But being a government employee, he did not loose his job. After the period of treatment, he rejoined in duty. Even though there may be difficulties, he was earning income till the date of his retirement. It is true that at the age of his retirement, he will get a better salary especially considering his experience as Surveyor. He has to retire at the age of 55. But compensation can be awarded only for the actual loss sustained by the claimant. He has to live and work with the disability. In the circumstances of the case, only a notional amount can be taken for calculating compensation. We are of the view that Rs.3,500/= ought to have been taken for the purpose of calculating compensation and taking guidance from the second schedule, 13 is the apt multiplier. If that be so, compensation payable for 20% disability will be Rs. 1,09,200/=(3500x12x20/100x13). For disability, the tribunal has granted Rs.1,95,720/=. Therefore extra amount of Rs.86,520/= was granted by the Tribunal. But we notice that the Tribunal did not award any compensation for disfiguration. The Tribunal noticed that his leg almost from the foot to the knee is ugly looking with deep adherent black scars with lot of muscle wasting and he is even now, at the time of trial, is MFA.680/2002 . 5 using caliper shoes. He was examined only after three years of the accident. So, we are of the view that Rs.10,000/= ought to have been awarded for disfiguration. He was using caliper shoes and he has to purchase caliper shoes etc. We also notice that for 21 months, he was on leave. The Tribunal has granted leave wages only for 12 months. Petitioner's salary at the time of the accident was Rs.4,561/=. If he has not availed the half pay leave, he could have encashed the half pay leave or taken leave for some other purposes. In the above circumstances, we are of the view that he is entitled to Rs.40,000/= for actual loss of wages during the leave period. So only a total amount of Rs.36,520/= need be reduced. Total compensation payable will be Rs.2,79,188/= rounded to Rs.2,79,190/=. The above amount should be deposited by the appellant with 9% interest from the date of application till the date of deposit after deducting the amount already paid. The appeal is partly allowed . J.B. KOSHY, JUDGE. THOMAS P. JOSEPH, JUDGE. MFA.680/2002 . 6 J.B. KOSHY & THOMAS P. JOSEPH,JJ. M.F.A.NO.680 OF 2002 JUDGMENT 1st September, 2008. MFA.680/2002 . 7