IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 3081 of 2009()
1. THE ORIENTAL INSURANCE CO.LTD.,
... Petitioner
Vs
1. BHASKARAN, S/O.GOPALAN, RESIDING AT
... Respondent
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent : No Appearance
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :13/01/2011
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No.3081 OF 2009
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Dated this the 13th day of January, 2011
JUDGMENT
Basheer, J.
Appellant is the insurer of a vehicle involved in a road traffic
accident that occurred on August 31, 2004 and which resulted in
certain injuries to the respondent/claimant in this appeal.
2. The Tribunal passed an award in favour of the claimant
directing the appellant/Insurance Company to pay a total sum of
Rs. 2,09,331/- towards compensation with 7.5% interest and also cost
of Rs.5250/-. The above award is impugned in this appeal primarily on
the ground that the Tribunal was not at all justified in awarding a sum
of Rs 72,000/- under the head of loss of earnings for a period of three
years.
3. We have perused the lower court records carefully. It is
seen from the Medical records available in the case that the
respondent/claimant had suffered fracture of shaft of femur ( L) M/3rd
apart from an injury on the right frontal bone adjacent to roof of orbit
MACA.No.3081/2009 2
and soft tissue injuries. The claimant was under treatment for ten days
initially. But according to the claimant, he underwent further treatment
in 2005 and also in 2007 because of non-union of the fractured bones
of the femur. The Tribunal has reckoned the monthly notional income
of the claimant as Rs. 2,000/- and awarded a total sum of Rs. 72,000/-
for three years from 2004 to 2007 under the head of loss of earnings.
4. But significantly, the claimant did not have a case in his
deposition that he had not been able to carry on his avocation as an
employee in a tea shop for three years. In the affidavit filed by him, in
lieu of chief examination, there is no such averment. Even in the claim
petition also, he did not have a case that he was prevented from
carrying on with his avocation for three years.
5. In that view of the matter, there is force in the contention
raised by learned counsel for the appellant that the Tribunal was not
justified in awarding such a huge amount under the head of loss of
earnings. It is true that in 2007, the claimant is seen to have undergone
some treatment in the Medical College Hospital, Kozhikode for the
alleged non-union of bones at the fracture site. The claimant did not
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produce any document to show that he had been continuing treatment
from 2004 till 2007 for any such complication.
6. In any view of the matter, the Tribunal, in our view, was
not justified in awarding such a huge amount under the head of loss of
earnings and that too for three years. In our view, interest of justice
will be met, if the claimant is awarded a sum of Rs. 24,000/- under this
head. Ordered accordingly. The impugned award is modified to the
above extent. In all other respects, the award passed by the Tribunal is
sustained.
The appeal is disposed of in the above terms.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.No.3081/2009 4