IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 MACA.No. 550 of 2009() ------------------------------------ OPMV.1031/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ------------------------ MILLITH, S/O. RAMAN, VETTUVANTHARA HOUSE, POYYA DESOM AND VILLAGE, THRISSUR DISTRICT. BY ADV. MR.N.KRISHNANKUTTY PILLAI RESPONDENT(S): DEFENDANTS ------------------------- 1. BALAN.M.N, MOOLEKATIL HOUSE, PARALAM.P.O, THRISSUR DISTRICT. 2. SANTHOSH KUMAR, S/O. RAMAN, VILWEMANGALATH HOUSE,PUTHENCHIRA.P.O, THRISSUR DISTRICT. 3. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, ALENGADAN BUILDINGS, TANA, IRINJALAKUDA, THRISSUR DISTRICT. 4. THE MANAGER, ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, CITY HEIGHTS BUILDING, SOUTH JUNCTION, CHALAKUDY. R3 BY ADVS. MR.P.JAYASANKAR R4 BY MR.M.JACOB MURICKAN, MR.A.K.RAMACHANDRAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.550 OF 2009 ............................................. Dated this the 16th day of October, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Irinjalakkuda in OP(MV)No.1031/2002. The claimant, a senior assistant, aged 39 years, of the Kerala State Electricity Board sustained injuries in a road accident and the Tribunal has awarded him a compensation of Rs,51,400/= of which Rs.15,500/= represents the medical expenses. Dissatisfied with the compensation awarded, the claimant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance company. The nature of injuries are extracted in para-6 of the award which shows that the person had a fracture and a laceration exposing the subcutaneous tissues and going through the 3rd web space of left foot and extending into the back of the 4th toe and another 4 cm diametre abrasion near the base of his 2nd to 5th toes, exposing tendors of 3rd and 5th toes. X-ray investigation revealed fracture of the 2nd and 5th metacarpal : 2 : M.A.C.A.NO.550 OF 2009 and open grade III fracture of the neck of the 3rd to 5th metatarsal, open grade I fracture of the open neck of the 4th toe and comminuted fracture of the base of the 1st phalanx of the 2nd toe. So, the actual cumulative effect of these things would reveal that the poor claimant had sustained very serious injuries on his left foot on account of the unfortunate accident. He was admitted in a hospital as an inpatient for 14 days and was regularly attending the hospital from 25.6.2002 to 21.10.2002. He had availed 72 days half pay leave (commuted) and 30 days earned leave. The earned leave was for the period 2004 and nothing was produced before the Tribunal to establish that the said leave was in connection with the injury sustained in the accident. But 72 days half pay leave is clearly within the treatment period. 3. When a person by virtue of an accident is bound to enter on leave, it has been held by the courts that he is deprived of that leave and when a contingency arises in future it makes imperative on him to enter on some other leave which will result in loss of income to that person and : 3 : M.A.C.A.NO.550 OF 2009 therefore he has to be compensated for the leave which he had taken on account of the accident. The salary certificate produced unfortunately is of the year 2004 wherein his salary is said to be 9746/=. This Court also does not have any materials to fix the precise salary on the date of the accident. Therefore considering the increments and other benefits which followed during every year, I fix the salary at Rs.7,500/= and grant the compensation for 72 days which would come to 18,000/= of which Rs.9,000/= is already awarded thereby entitling the claimant to have an additional compensation, Rs.9,000/= under that head. The Tribunal light heartedly had totally rejected the disability certificate. That is why I had extracted in extenso the nature of injuries sustained by the person. The doctor opined that the claimant finds it very difficult to grip objects and to hold objects and extremely very difficult to stand on the toes, to run or to jump and to stand for a long time on left foot. Though the percentage of disability calculated by the doctor at 19% as such cannot be accepted, some percentage of disability can be taken into consideration for the reason that : 4 : M.A.C.A.NO.550 OF 2009 majority of the fracture as per the certificate of the doctor appears to be malunited. Therefore I fix the percentage of disability at 5% and post retirement income at Rs.2,000/= and awarded compensation with a multiplier of 9. When it is so, it would come to Rs.10,800/=. Therefore, the claimant will be entitled to an additional compensation of Rs.19,800/= which I make it as Rs.20,000/=. I also make it clear that during the period of delay, the claimant is not entitled to get interest. 4. Therefore, the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.20,000/= with 7% interest on the said sum from the date of the petition till the date of the award and again from the date of this appeal 19.2.2009 till realisation and the 3rd respondent United India Insurance Company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 5 : M.A.C.A.NO.550 OF 2009 MACA.No.935/2009 C.M.appln. 1090/2009 The grounds alleged appear to be true and proper as there was some inconvenience for the counsel who was entrusted with the matter to proceed in accordance with law. Therefore, in the interest of justice, delay is condoned. This is an appeal preferred against the award of the Claims Tribunal,///// Perumbavoor in OP(MV)No.1348/2002. The claimant sustained injuries in a road accident on 19.1.2002 and sustained lacerated wound on the left knee, abrasion on the left knee and contusion on the scalp. She was initially admitted in a hospital on 19.1.2002 and discharged on 23.1.2002. Again she was readmitted after two years on 21.4.2004 and discharged on the next day. It is seen that she had ////// hipper tropic painfull scar on the knee region. So, the fact remains that the injury appears to be not of a serious nature but the young girl at the age : 6 : M.A.C.A.NO.550 OF 2009 of 15 had undergone pain for such a length of time. Even in 2004, she had taken to the hospital in connection with the injury sustained to the knee. Therefore, I feel in the fitnesss of things compensation for pain and sufferings can be increased by Rs.3,000/== and towards loss of amenities by Rs.2,000/= making an additional compensation of Rs.5,000/=. But, for the inordinate delay caused in filing the appeal, interest cannot be directed to be paid by the insurance company. Therefore, MACA is partly allowed and the claimant is awarded an additional compensation of Rs.5,000/= with 7% interest from the date of the petition till the date of the award passed by the Tribunal and from the date of filing the appeal namely 7.4.2004 till realisiation and the insurance compnay is directed to deposit the said amount within 60 days from the date of receipt of a copy of this judgment. Disposed of accordingly. : 7 : M.A.C.A.NO.550 OF 2009 MACA.No.544 of 2009 Notice to R2 dispensed with as accident and policy is admitted. R1 and R3 served. R4 enters appearance. This is an appeal preferred against the award of the Claims Tribunal, Ernakulam in OP(MV)No.3265/2001. The claimant, a High School Assistant by profession sustained injuries in a road accident and the Tribunal has awarded her a compensation of Rs.42,700/=. Dissatisfied with the said amount, the claimant has come up in appeal. Heard the learned counsel for the appellant as well as the insurance company. A perusal of the award would reveal that immediately after the accident she was admitted in Alshifa hospital at Perinthalmanna where she continued treatment for 3 days and thereafter on 20.10.2007 she was admitted in Ernakulam Medical Centre. The treatment records would reveal that there was excission of lateral end of clavical and corr transfer was done. The documents : 8 : M.A.C.A.NO.550 OF 2009 also establish that she was on loss of pay leave for 61 days , halp pay leave for 4 days and earned leave for two days. The Tribunal refused to grant her compensation for leave on the basis that it was not proved whether she had leave to her credit. It has to be stated that irrespective of the fact that whether there is leave to her credit or not when an accident caused to her the injured is compelled to take leave beyond on the reasons on her5 control necessarily the court has to compensate her. Further it is the settled principle that when the leave is taken on account of these factors when a future necessity arises to take leave then necessarily the person has to go on loss of pay leave. Therefore the courts have taken consistent leave to grant compensation of such leaves. Here total leave availed is 68 days. Her s alary is 6078 and therefore for 68 days it will come to Rs.13,772/= which is rounded as Rs.13,000/= and after deducting Rs.5,200/= granted whe will be entitled to a compensation of Rs.7,800/= towards loss of earnings. It has to be borne in mind that it was not from claviculor fracture accompanied with ligment tire which means that she : 9 : M.A.C.A.NO.550 OF 2009 requried a very long term and it would have certainly reuslted in loss of amenites and enjoyemnt in life. Towards the same I award Rs.2,200/= making it a total compensation of Rs.10,000/=. In the result, MACA is partly allowed and the claimant is awarded an additional compensation of Rs.10,000/= with 7.5% interest from the date of the petition till realisation and the respodnent insurance company is directed to deposit the amount within 60 days from thedate of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE : 10 : M.A.C.A.NO.550 OF 2009 cl : 11 : M.A.C.A.NO.550 OF 2009