IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 571 of 2004()
1. CHANDRASEKHARAN NAIR, S/O.DAMODARAN NAIR
... Petitioner
Vs
1. K.R.PRAMOD, S/O. K.N.RAMACHANDRAN NAIR,
... Respondent
2. THE NEW INDIA ASSURANCE CO. LTD.,
For Petitioner :SRI.THOMAS M.JACOB
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :13/11/2008
O R D E R
C.N.RAMACHANDRAN NAIR &
HARUN-UL-RASHID, JJ.
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M.A.C.A. No.571 of 2004
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Dated this the 13th day of November, 2008.
JUDGMENT
Ramachandran Nair, J.
Appeal is filed for enhancement of compensation for the injury
sustained by the appellant in a road accident. We have heard counsel
appearing for the appellant and Standing Counsel appearing for the
Insurance Company.
2. The accident occurred on 30.5.1998 and according to the
appellant, even after 10 years of protracted treatment with 8 months’
hospitalisation intermittently, he is not in a position to move around
freely and work to earn livelihood. The appellant was present in court
and we had occasion to see his condition particularly, the damage to
leg, in the presence of counsel for the appellant and counsel for the
Insurance Company. We are convinced that the percentage of
disability certified is only an underestimation and the appellant is
really not able to earn livelihood with physical work. At the maximum
he can sit and do some sedentary work. He was a tailor by profession
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and was partly engaged in rubber tapping. Counsel contended that
income fixed at Rs.1,800/- per month for the purpose of awarding
compensation for disability is very low. Counsel appearing for the
Insurance Company submitted that the appellant got compensation
under two heads namely, one for disability and the other for loss of
earning power which cannot be simultaneously granted as per Full
Bench decision of this court in ORIENTAL INSURANCE COMPANY
LTD. V. HARIPRASAD (2005(4) KLT 977). We agree with this
proposition and hold that appellant will not be entitled to separate
compensation for loss of earning power after availing compensation for
permanent disability. Therefore, the award of Rs.40,000/- towards loss
of earning power is deleted. However, enhancement of compensation
for permanent disability is called for because as a person engaged as a
tailor and simultaneously as a rubber tapper which is a part time job in
the morning, appellant would have been able to earn atleast Rs.3,000/-
per month. Going by the multiplier 11 and applying the same
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percentage of disability i.e. 53%, appellant will be entitled to
compensation for disability at Rs.2,09,880/-(3000 x 12 x 11 x 53/100).
3. The appellant has filed I.A. No.3086/2008 for acceptance of
additional evidence for claiming compensation for expenses incurred
for treatment subsequent to the award. The total amount is
Rs.10,395/-. On seeing the condition of the appellant’s leg, we do not
find any ground to disbelieve the subsequent treatment and expenses
incurred. We, therefore, enhance the compensation by Rs.10,395/-
representing additional cost incurred for treatment. On account of
enhancement of income and since the appellant was in the hospital for
8 months, we estimate the loss of employment for 12 months and as
against Rs.12,600/- granted by the MACT for loss of earning during
the period of treatment and recoupment, appellant will be entitled to
Rs.36,000/-. Consequently enhancement under this head will be
Rs.23,400/-. Considering the disability which is permanent in nature,
we grant a sum of Rs.50,000/- for disfiguration and loss of enjoyment
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in life and towards future medical expenses. The additional
compensation granted by us will carry interest at 7.5% p.a. from date of
application till date of payment. The appeal stands allowed to the
above extent.
C.N.RAMACHANDRAN NAIR
Judge
HARUN-UL-RASHID
Judge
pms