IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 248 of 2005()
1. PRABHAKARAN, S/O. LATE BALAN NAIR,
... Petitioner
Vs
1. THE UNITED INDIA INSURANCE CO.LTD.,
... Respondent
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :SRI.P.R.RAMACHANDRA MENON
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :23/10/2008
O R D E R
J. B. KOSHY &
K. P. BALACHANDRAN, JJ.
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M. A. C. A. No.248 of 2005
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Dated this the 23rd day of October, 2008
JUDGMENT
Koshy, J
Appellant/claimant sustained injuries at
the age of 43 in a motor accident. The
Tribunal found that the accident occurred due
to the negligence of the first respondent/
Driver-cum-Owner of the motor vehicle insured
by the second respondent/Insurance Company. A
petition was filed claiming an amount of
Rs.8,01,420/- for the injuries sustained to
the appellant/petitioner. The Tribunal though
found that the respondents are jointly and
severally liable to pay compensation and there
was valid insurance for the offending vehicle
at the time of the accident, only awarded
Rs.70,000/- with interest at the rate of 6%
per annum from the date of application till
M. A. C. A. No.248 of 2005 -2-
the date of realisation. Only dispute is
regarding quantum of compensation.
2. The claimant was a Junior Commissioned
Officer in the Indian Army. His monthly income
was Rs.11,527/- as per Ext.A4 salary
certificate. Ext.A13 salary certificate
dt.13/05/2002 shows that his monthly income
was Rs.13,584/-. The Tribunal found that he
was on annual leave from 26/03/02 to 30/05/02
i.e. for 66 days. The accident occurred on
13/05/2002. He had to avail advance annual
leave for 30 days from 31/05/02 to 29/06/02
and 42 days sick leave from 30/07/02 to
13/08/02. The Tribunal awarded a consolidated
amount of Rs.15,000/- for loss of actual
earnings, since part of the leave period was
not on loss of pay, he could have encashed
those leave at the time of retirement. His
opportunity to take annual leave in the next
year was also lost. Therefore, we are of the
M. A. C. A. No.248 of 2005 -3-
view that the Tribunal ought to have granted
at least Rs.30,000/- for actual loss of
earnings. Therefore, claimant would be
entitled to Rs.15,000/- more on account of
actual loss of earnings.
3. After considering Ext.A14 certificate
issued by the Central Commanding Signal
Regiment, Lucknow, J.C.O can avail service up
to 30 years i.e. up to 03/02/08. But appellant
as J.C.O being placed in low medical category
his service curtailed to 28 years i.e. up to
3rd February, 2006. Therefore, he will lose two
years service and other benefits from the
military service. He also lost promotional
chances as he was placed in a low medical
category. He also lost chance of getting a
general expectancy as ex-service man due to
the disability. He has produced a medical
certificate showing 20% disability assessed by
the Medical Board of the Military. The
M. A. C. A. No.248 of 2005 -4-
Tribunal did not rely on 20% disability
because in the certificate it is stated that
he would be again re-examined for next re-
categorisation. Tribunal also noticed that
there is no proof before the Tribunal to show
that he has to retire after 28 years of
service apart from the certificates produced.
Taking all these possibilities and considering
the fact that he did not lose his job,
Tribunal has taken only 3 as the percentage of
disability, 15 as the multiplier, only
Rs.2,000/- as the monthly income and
calculated compensation and the total
calculation granted for disability is only
Rs.10,800/-.
4. Now we will consider the injury
suffered by him in the accident. Ext.A3 is the
copy of the wound certificate. As per the
above he sustained the following injuries:-
M. A. C. A. No.248 of 2005 -5-
“Lacerated wound left ankle, multiple abrasion
fracture neck, 2, 3 metatarsals, fracture dislocation 4th
MTP joint, fracture P1 4th toe, fracture cuboid.”
5. Ext.A6 is the certificate issued by
Special Surgeon attached to Army. His
certificate is summarised by the Tribunal as
follows:-
“He certified that c/o pain and swelling Lt. Foot
along with difficulty in bearing full weight and reveals
that fracture neck 2 & 3 MT, proximal phalanx 4th toe
and comminuted fracture cuboid Lt. Foot – healing in
progress and in column of remarks it is noted as in
view of his multiple fracture and restricted mobility,
will require a sheltered appointment and intensive
physiotherapy and he recommended that excuse all
strenuous duties including PT parade and games,
physiotherapy of Lt. Foot and crepe bandage
application and medicines prescribed. Petitioner also
produced the discharge summary card issued from A1-
Shifa Hospital, Perinthalmanna, which shows that the
date of admission is 13/05/2002 and the date of
discharge is on 21/05/02. In the column of final
diagnosis it is noted as displaced fracture neck 2,3 MT
(L) with traction, dislocation 4th MTP joint, (L) with
comminuted base of P1 4th toe, crushed comminuted
cuboid (L) with diastesis at base 4th, 5th toe. In the
procedure it is noted as ORIF with ‘K’ wire, BK slab
applied on 13/05/02. Further, it is noted as check x-ray
acceptable. The case is seen reviewed on 28/05/02
thereafter on 25/06/02 there it is noted as ROP, fracture
united ‘K’ wires removed and it is also prescribed top
crepe bandage and review on 08/07/02, there it is noted
as patient is unfit for duty till further orders. On 9/7
walks OK reviewed on 8/8 x-ray acceptable, fractureM. A. C. A. No.248 of 2005 -6-
united and review on 10/9, then further therein also
directed to continue crepe bandage and light work for 1
month. On 9/12 it is noted came for disability
certificate, further, all fractures united and also noted
mal-united, cuboid fracture base P1 (L) 4th toe. This
discharge summary is seen marked as Ext.A10. Ext.A7
is the Confidential Medical case sheet produced and
marked on the side of the petitioner. As per the said
document, the entries are seen made on 05/03/03 there
it is noted as 44 year old serving, a case of fracture
neck of 2nd and 3rd MT and proximal phalanx 4th toe and
comminuted fracture (L) cuboid. On examination mild
swelling present in the midfoot region, no local
tenderness ankle movements are free and full, and also
shows that he was placed low medical category A2.
The 2nd sheet says that on 28/07/03 the fracture neck 2nd
IIIrd metatarsal i.e. Proximal phalanx IV
toe/comminuted fracture (L) cuboid. Presently Ext. in
cat.A2 for the same since 05/03/03, C/o pain in the
affected area, more while walking, Lt foot – mild
swelling at the fracture site. There also recommended
for continued A2 category. Thereafter the medical
board examined him and the percentage of disability is
assessed as 20%.”
6. It is very clear from the certificate
issued by the Al-Shifa Hospital also that he
sustained displaced fracture neck, end and 3rd
MT, with comminuted fracture base of P1, 4th
toes and crush comminuted cuboid (L). At the
time of the accident, he was 43 years old. If
the monthly income earned by him at the time
M. A. C. A. No.248 of 2005 -7-
of the accident is taken, compensation payable
for 20% disability will be a huge sum.
Further, if he continues for two years more
his retirement income based on last drawn
salary will be huge. But since his employment
was not lost, only two years of employment was
lost, we are of the view that compensation
cannot be granted on a multiplier method. But
it is true that injuries are very serious. He
lost the strength to do any other work after
his retirement. He has to suffer these
difficulties till his death. Even without
calculating any amount for future prospects,
if only Rs.12,000/- is taken as the monthly
income, for 24 months, it will come to
Rs.2,80,000/-. We also note that his retiral
income will also be reduced because of his
early retirement. Hence, we are of the opinion
that considering the nature of the injuries,
position in life, 20% disability certified by
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the Military Medical Board and circumstances
of the case, this is a fit case where Tribunal
ought to have awarded at least Rs.2 lakhs as
compensation for the permanent disability,
loss of earning power etc. Tribunal has
awarded only Rs.10,800/- for disability and
Rs.6,000/- towards adverse effect of the
injury. If that is deducted compensation
payable will be Rs.1,83,200/-. It is contended
that compensation granted for pain and
suffering and on all other heads are very low,
but considering the total amount granted we
are not enhancing the compensation on those
heads.
7. Even though before the Tribunal first
respondent owner-cum-driver entered appearance
and filed written statement, Insurance Company
was contesting the case and insurance coverage
was not disputed by the Insurance Company. The
Insurance Company was directed to deposit
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compensation by the Tribunal. Thus, the total
amount of Rs.1,98,200/- (Rs.1,83,200/- +
Rs.15,000/- towards actual loss of earnings)
should be deposited by the first
respondent/Insurance Company with 7.5%
interest from the date of application till its
deposit over and above the amount decreed by
the Tribunal. On deposit of the amount, the
appellant is allowed to withdraw the same.
8. This appeal is thus allowed in part.
J. B. KOSHY
JUDGE
K.P.BALACHANDRAN,
JUDGE
kns/-