IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 142 of 2008()
1. MR.K.R.RAMACHANDRAN NAIR, AGED 66,
... Petitioner
Vs
1. C.VIJAYAKUMARI, W/O.SRI.KAMALASANAN,
... Respondent
2. SOMAN.K., AGED 48, S/O.SRI.G.KUTTAN,
3. THE UNITED INDIA INSURANCE CO. LTD.,
4. THE NEW INDIA ASSURANCE CO. LTD.,
For Petitioner :SRI.T.K.RADHAKRISHNAN
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :17/07/2009
O R D E R
C .N. RAMACHANDRAN NAIR &
C. K. ABDUL REHIM, JJ.
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M.A.C.A. No. 142 OF 2008
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Dated this the 17th day of July, 2009
JUDGMENT
Abdul Rehim, J.
Claimant in O.P.(MV) No. 3457 of 1999 on the files of the Motor
Accidents Claims Tribunal, Ernakulam, is the appellant. He sustained
injuries when a lorry collided against the car driven by him, along with
his wife and brother as passengers therein. The appellant sustained
bilateral rib fractures with flail chest and fracture of left brachial ramus
and acetabulam along with fracture of right pelvic ring. He also lost
one teeth, the right lateral incisor. The appellant was admitted at KVM
Hospital, Cherthala immediately after the accident, from where he was
referred for better management to Medical Trust Hospital, Ernakulam.
He was put to ventilator support during the initial days. He continued
inpatient treatment on three spells at the Medical Trust Hospital,
Ernakulam and thereafter at the NSS Medical Mission Hospital,
Pandalam. The total inpatient treatment was for 58 days. Thereafter he
continued outpatient treatment for a prolonged period with POP cast
for six weeks on two occasions.
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2. The appellant was working as Manager (R & D) at the head
office of FACT. Ext.A13 is the salary certificate produced. It is
noticed therein that the gross salary of the appellant during that time
was Rs. 16,006.75, whereas the Tribunal had reckoned his basic salary
of Rs. 8875/- only. Ext.A14 is the certificate with respect to leave of
the appellant which shows that he was on leave for about 4 months.
Inspite of production of Exts. A13 and A14, the Tribunal has granted
an amount of Rs. 8000/-, only under the head of loss of earning, which
is highly unrealistic and inadequate, according to the appellant.
Ext.A16 is the disability certificate, from which it is evident that the
appellant had persistent disability like limitation of movement of hip,
wasting of gluteal and thigh muscles, pelvic obliquity and limping due
to pain, etc. Inspite of production of the certificate the Tribunal has not
granted any compensation under the head of compensation for
continuing permanent disability. On the other hand, Rs. 8000/- was
awarded for discomfort and inconvenience. The learned counsel
appearing for the appellant vehemently contended that total
disallowance of claim for continuing permanent disability and loss of
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earning power is highly erroneous.
3. On a consideration of the entire facts and circumstances and
evidence on record, we are convinced that the appellant sustained very
serious injuries and continued prolonged treatment. It is evident from
the nature of injuries and the details of treatment that the appellant had
persistent disability resultant out of the injuries sustained. But it is
evident that the disability has not affected his employment and he
continued in service. Therefore while considering compensation on
account of permanent disability only the diminished future prospects
for re-employment after retirement alone can be considered. The
continuing permanent disability which he carries life long has also to
be compensated. Considering these aspects we feel that an amount of
Rs. 35,000/- under the head of compensation for continuing permanent
disability and an amount of Rs. 15,000/- towards loss of amenities and
enjoyment in life will be just and reasonable to be awarded. This will
entitle the appellant for an additional of Rs. 42,000/- under those heads
(Rs. 35,000/- + Rs. 15000/- -Rs. 8000/-). It is evident that the appellant
was drawing a monthly salary of Rs. 16,000/-. He was on leave for a
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period of four months. Therefore the compensation for loss of earning
is substituted with a total amount of Rs. 64,000/- which will entitle the
appellant for an additional sum of Rs. 56,000/-. Under the above
circumstances, the total compensation need be enhanced by an
additional sum of Rs. 98,000/- (Rs. 56,000/- + Rs. 42,000/-).
In the result, the appeal is partly allowed enhancing the total
compensation of Rs. 42,500/- awarded by the Tribunal by a further sum
of Rs. 98,000/-, which will carry interest at the rate of 7.5 per cent per
annum from the date of the claim petition till payment. The third
respondent-insurance company is directed to make payment of the
amount within a period of three months.
(C.N.RAMACHANDRAN NAIR)
Judge.
(C. K. ABDUL REHIM)
Judge.
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