IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 442 of 2003()
1. JOSE, S/O. ANTHONY,
... Petitioner
Vs
1. R.SUBRAMANIAN,S/O.RAMASWAMY CHETTIAR,
... Respondent
2. K.SELVAKUMAR, S/O. KRISHNA GOWNDER, 19,
3. THE NATIONAL INSURANCE CO.,
For Petitioner :SRI.P.V.BABY
For Respondent :SMT.RAJI T.BHASKAR
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :05/08/2009
O R D E R
C.N.RAMACHANDRAN NAIR &
C.K.ABDUL REHIM, JJ.
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M.A.C.A. No.442 of 2003
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Dated this the 5th day of August, 2009.
JUDGMENT
Abdul Rehim, J.
The appellant is the claimant before the Tribunal. The appeal is
filed seeking enhancement of the compensation awarded. Appellant
sustained injuries when a lorry hit against a jeep in which he was
traveling. He sustained compound fracture and dislocation of right
knee, fracture on the femoral condylar and fracture to the pelvis, along
with other injuries. Appellant continued prolonged treatment, both as
inpatient and outpatient for a period of more than two years. The
injuries sustained had resulted in persistent disability. The disability
certificate produced enumerates the difficulties and incapabilities
resulted out of the injuries, which prevents the appellant from
continuing his occupation. The Tribunal adopted the percentage of
disability for the purpose of computation at 25%. Compensation
granted for continuing permanent disability and loss of earning power
is Rs.76,500/-. A total compensation of Rs.1,35,200/- was awarded.
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2. Heard learned counsel for the appellant and Standing Counsel
for the third respondent-Insurance Company. The appellant contended
that the notional income of Rs.1,500/- adopted by the Tribunal, inspite
of production of documentary evidence to prove that he is a Driver by
profession, is unrealistic and inadequate. It is contended that inspite of
evidence to the effect that he continued treatment as inpatient for a total
period of 140 days under different spells and inspite of his continued
treatment for a period of more than two years, the Tribunal had granted
temporary loss of earning only for a period of 12 months. It is further
contended that amounts awarded under various heads like expenses of
bystander, compensation for pain and suffering, compensation for loss
of amenities and enjoyment in life etc. are on the lower side.
3. On evaluation of the evidence on record and considering the
facts and circumstances of the case, we feel that the notional income of
Rs.1,500/- adopted is on the lower side. Considering the fact that the
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appellant is a Driver, we moderately estimate his monthly income at
Rs.2,000/-. Accordingly we refix the compensation for permanent
disability at Rs.1,02,000/- (2000 x 12 x 17 x 25%) instead of
Rs.76,500/- awarded by the Tribunal. This will entitle the appellant for
an enhancement of Rs.25,500/-. Computed on the above basis, the
loss of temporary earning for a period of 12 months will be Rs.24,000/-
which will entitle the appellant for an additional sum of Rs.6,000/-.
Thus the appellant will be entitled for a total additional compensation
of Rs.31,500/- (Rs.25,500/- + Rs.6,000/-). Even though it is
contended by counsel that the temporary loss of earning need be
awarded for a period of atleast two years, we are not persuaded to
accept the contention on the ground that compensation for permanent
disability for a total period of 17 years is adopted. On consideration of
various amounts awarded under different other heads, we do not think
that any interference is called for for enhancement.
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In the result, the appeal is partly allowed enhancing the total
compensation of Rs.1,35,200/- awarded by the Tribunal by a further
sum of Rs.31,500/- which will carry interest at the rate of 9% p.a. from
the date of claim petition till date of payment. The third respondent-
Insurance Company is directed to make payment of the amount within
three months.
C.N.RAMACHANDRAN NAIR
Judge
C.K.ABDUL REHIM
Judge
pms