IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 MFA.No. 245 of 2003(F) ---------------------- OPMV.1393/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT: PETITIONER: ---------------------------------------- SAJI K.JOHN, KOOVAKKATTIL HOUSE, PALAKKUZHA KARA, PALAKKUZHA VILLAGE, MUVATTUPUZHA. BY ADV. SRI.P.V.ELIAS SRI.N.N.ELAYATH RESPONDENTS: ------------------------- 1. M.MATHEW, THEKKEYONANIKUNNEL HOUSE, PALAKKUZHA P.O., KOOTHATTUKULAM. 2. BABU, S/O. JOHN, ELLICKANIRAPPEL HOUSE, PALAKKUZHA P.O., KOOTHATTUKULAM. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., MUNICIPAL SHOPPING COMPLEX, MUVATTUPUZHA. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NO.245 OF 2003 ---------------------------------------------------- Dated this the 1st day of July, 2008. JUDGMENT Koshy, J: The appellant/claimant sustained injuries in a motor accident on 16.3.1988. He approached the Tribunal claiming a compensation of Rs.7 lakhs. The Tribunal found that the accident occurred due to the negligence of the driver of the vehicle insured by the 3rd respondent insurance company. However, total compensation awarded was only Rs.2,43,420/= including reimbursement of actual medical expenses incurred by him. The only dispute is regarding the quantum of compensation. We noticed that the appellant was employed as a Agricultural Officer and his salary was Rs.7,853/=. Rs.6,675/= was his basic salary. The appellant was on leave for 216 days. The Tribunal has granted Rs.56,000/= for 216 days of loss of pay leave. The total leave availed by the appellant is as follows: 1. “Earned leave for 140 days from 17.3.1998 to 3.8.1998. 2. Half pay leave for 43 days from 4.8.98 to 15.9.98. M.F.A.NO.245/03 . 2 3. Half pay leave for 29 days from 16.9.98 to 140.10.98. 4. Earned leave for 30 days from 10.3.99 to 8.4.99. 5. Half pay leave for 48 days from 9.4.99 to 26.5.99. 6. Leave on loss of pay for 216 days from 27.5.99 to 28.12.99. Apart from 216 days of loss of pay, he has availed 218 days earned leave and half pay leave. He lost facility of encashment of earned leave or taking leave for other purposes. Therefore, the Tribunal ought to have considered this aspect for granting compensation for actual earnings. We are of the opinion that the Tribunal ought to have granted another Rs.50,000/= for the actual loss of earnings during the leave period. With regard to the permanent disability and loss of earning power, the tribunal noticed that the doctor certified by Ext.A6 that there is 35% disability. Ext.A6 certificate reads as follows: “This is to certify tht Mr.Saji K. John, 33 year old male patient, our hospital registration number 718170, Koovakkatle House, Palakuzha Post, Ernakulam District was admitted under department of Neurosciences on 17.3.98 with an alleged history of getting involved in a road traffic accident with critical injuries to the brain. He was diagnosed to be having diffuse Axonal injuries to the brain, left frontal lobe contusional injury, M.F.A.NO.245/03 . 3 bifrontal extra dural haemotoma and a left 3rd nerve injury. He was discharged on 22.4.1998 when he was able to sit up on a chair. As of today, at the end of two and a half years following the injury, he has permanent residual functional loss of brain and spinal cord functions leading to disability. Under impairment of spinal cord and/or Brain Motor functions, he is having a residual left hemiparesis due to which he can stand but walks with difficulty. He cannot run and finds it difficult to climb down stairs due to giddiness and double vision due to the third nerve palsy. He is having some difficulty with self-care due to the residual weakness of the left extremity. He is having no difficulty with respiration, urinary bladder of anorectal functions. Under impairment of Brain other than motor functions, he joined back his job as an agricultural officer but due to poor decision making he was asked to continue ln leave. He rejoined duty during December 22, 1999. As of today he is able to do the job assigned to him but is not able to clear any pending jobs due to loss of memory. He has communication disturbances due to slurring of speech and resultant lackness of clarity and partly due to poor comprehension. He is also having left third cranial nerve paralysis persisting with double vision and partial ptosis of left eye. The overall percentage of impairment of brain and spinal cord functions of the whole person can be determined as 35% and since it is more than 2 years from the time of injury, these residual loss of functions can be considered as permanent”. M.F.A.NO.245/03 . 4 Ext.A6 certificate was from the Head of the Department of Neurosciences, Medical Mission Hospital, Kolencherry. The Tribunal did not calculate compensation on a multiplier method but Rs.85,000/= was granted. We noticed that the appellant was a Government employee. He did not loss his employment. He continued employment after he rejoined duty. Therefore, compensation cannot be granted purely on a multiplier method. His retirement age is 55. He may get another job after his retirement as he is an expert technician. But considering the difficulties mentioned, he will not be able to get any job. He has to continue with the disability till the end of his life. Taking into account these aspects we are of the opinion that, Tribunal ought to have awarded Rs.20,000/= for disability and loss of earning power. Thus additional amount payable will be Rs.70,000/=. Therefore additional amount of Rs.70,000/= should be deposited by the 3rd respondent insurance company with 7.5% interest from the date of application till the date of deposit. On deposit of the amount, the appellant is allowed to withdraw the same. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. M.F.A.NO.245/03 . 5 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NO.245 OF 2003 JUDGMENT 1st day of July, 2008. M.F.A.NO.245/03 . 6