G.Bahuleyan vs Xavier Edward on 12 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 470 of 2003()


1. G.BAHULEYAN, S/O.GOPALAN,
                      ...  Petitioner

                        Vs



1. XAVIER EDWARD, S/O.EDWARD,
                       ...       Respondent

2. THE ORIENTAL INSURANCE CO.LTD.,

                For Petitioner  :SRI.C.V.VASUDEVAN

                For Respondent  :SRI.VPK.PANICKER

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN

 Dated :12/08/2008

 O R D E R
                       C.N.RAMACHANDRAN NAIR &
                                  V.K.MOHANAN, JJ.
                  ....................................................................
                              M.A.C.A. No.470 of 2003
                  ....................................................................
                   Dated this the 12th day of August, 2008.

                                         JUDGMENT

Ramachandran Nair, J.

The appeal is filed for enhancement of compensation awarded for the

injuries sustained by the appellant in a road accident caused by the first

respondent. The MACT accepted appellant’s claim that the accident was

due to the negligence of the first respondent and consequently held that the

insurer namely, second respondent herein is liable to compensate the

appellant for the loss sustained by him. We have heard counsel appearing

for the appellant and counsel appearing for the second respondent.

2. The appellant has filed an additional affidavit before us contending

that 6% disability certified by the Doctor pertains to only physical disability

and appellant has suffered more extensive damage to his mental faculties.

Learned counsel highlighted the requirement of good physical and mental

strength to work as a lawyer. However, counsel for the second respondent

contended that disability certified by Doctor is accepted by the MACT and

appellant can only dispute the estimation of income made by the MACT.

According to him, appellant has not produced any evidence to establish his

2

income. It was further pointed out that the appellant is a retired Defence

personnel and is therefore, a pensioner who took up practice as an Advocate

after retirement from the Defence service.

3. Even though disability certified is only 6%, we find that the

appellant has suffered head injury, though not of a serious nature, and he

has lost two teeth besides injury to his lips. The accident happened 12

years back and even in the latest affidavit filed, the appellant has no case

that he had to discontinue practice. Therefore, obviously he was able to

continue his profession even after the accident. Nothing is stated about loss

of earning power on account of reduction in the faculty for thinking and

remembering things. In any case having regard to the head injury which

caused Oedema and clotting atleast for short time, appellant’s thinking

process would have been affected. He was also in the hospital for an

appreciable period. Therefore, we feel enhancement of compensation is

called for, to make up for loss of earning power. We, therefore, increase

the compensation awarded for loss of earning power consequent to partial

permanent disability from Rs.23,760/- to rupees fifty thousand. The appeal

will stand allowed to the above extent. The Insurance Company is directed

to deposit the additional compensation with interest at 7.5% from date of

application till date of payment.

3

4. Since the appellant is already 62 years of age and is a professional,

we direct the MACT to release full payment to the appellant directly

immediately on deposit by the Insurance Company.

C.N.RAMACHANDRAN NAIR
Judge

V.K.MOHANAN
Judge
pms