S.SIRI JAGAN,J. - (1.) THE appellant is the claimant in O.P.(MV)No.3006/2003, before the Motor Accidents Claims Tribunal, Thrissur. He suffered very serious injuries to his right hand and right leg in a motor accident caused by the negligence of the driver of a vehicle owned and driven by the respondents 1 and 2 respectively and insured with the 3rd respondent. In the O.P.(MV), the appellant claimed compensation for the injuries and consequent disability sustained by him. The Tribunal awarded compensation under various heads as follows: 1. Loss of earning : 10,000 2. Expense for transportation : 3,000 3. Expense for extra nourishment : 2,000 4. Damages to clothing : 500 5. Expense for treatment : 75,350 6. Expense for bystander : 2,000 7. Compensation for pain and suffering : 15,000 8. Compensation for loss of amenities : 10,000 9. Compensation for disability : 66,000 Total :1,83,850
(2.) DISSATISFIED with the quantum of compensation awarded, the appellant has filed this appeal seeking enhancement of compensation. The appellant submits that on all counts, the amounts awarded are too low. He submits that although he has proved his monthly salary, by producing Ext.A11 salary certificate, as Rs.10,087.00, the Tribunal has arbitrarily fixed the monthly income only as Rs.2,000.00. It is further submitted that although the appellant has produced Ext.A8 and proved the same through the doctor who treated him, the Tribunal fixed the disability only at 25% as against 31% certified by the doctor. It is further submitted that for the purpose of granting compensation for loss of earning, the Tribunal ignored the fact that the appellant had proved that he had taken 153 days of half pay leave and produced Ext.A10 leave certificate in respect thereof, despite which only Rs.10,000.00 was awarded towards loss of earnings. It is submitted that the appellant is entitled to compensation for disability calculated on the monthly salary of Rs.10,087.00 for 31% disability taking the multiplier as 11, which has not been done in this case. Instead the Tribunal has awarded compensation only on Rs.2,000.00 per month at the rate of 25% disability which is too low in these circumstances. It is also the case of the appellant that as is clear from Ext.A7 medical certificate, the appellant is suffering even now and therefore the compensation of loss of amenities of Rs.10,000.00 is too low. It is further submitted that although in Ext.A8 certificate doctor had certified that he requires future surgeries for removal of implant, no compensation has been awarded for future treatment. The appellant seeks enhancement on all these counts. We have heard the counsel for the Insurance Company as well. We have considered the rival contentions in detail. The disability certificate Ext.A8, which has been proved by PW1, the doctor who treated the appellant, has certified the medical condition the appellant in respect of every aspect, which reads thus: "1. His right radius fracture has malunited in 200 Volar angulation and 200 radial angulation 2. He has undergone excision of lower end of ulna 3. He has stiffness of right wrist with dorsiflexion 450 to 200 Palmar flexion 4. His right femur fracture has united with interlocking nail inside. He has stiffness right hip with flexion from 1800 line to 900 5. He has stiffness right hip with abduction and adduction from 250 to 200 6. He has stiffness right knee with flexion from 1800 line 500.. Further flexion is absent 7. He has stiffness right ankle with movements from 900 angle to 1100 plantar flexion 8. His right tibia fracture has malunited with 150 posterior angulation and excess callus formation 9. He has difficulty in squatting and climbing up and down stairs 10. He walks with the aid of a stick 11. He requires future surgeries for removal of his implants He is assessed to have a permanent disability of only 35% (Thirty five percent). The split up disability is as below, 3% for radius malunion, 5% for excised lower end of ulna, 4% for right wrist stiffness, 4% for flexion limitation right hip, 2% for abduction/adduction limitation, 10% for right knee stiffness, 7% for right ankle stiffness, After applying the Kessler's formula the total whole body disability is assessed as 31% (Thirty One Percent)" In view of the same, we are inclined to reckon his disability for the purpose of fixing loss of earning capacity as 31% itself.
(3.) BUT we are not satisfied that the compensation for loss of earning has to be computed the way the appellant wants it. It is not disputed that the appellant's age of retirement was 55. The appellant has no case that his emoluments from his job was in any way reduced because of the accident. That being so, there is no loss of earning capacity at least till he retires at the age of 55. Therefore, out of the multiplier of 11, two has to be excluded for the purpose of calculating loss of earning capacity. After 55, the appellant would not get the same salary, but he will certainly get his pension. Of course, as a qualified Electrician, he may have earned additional income from private work. We are also satisfied that the income fixed of Rs.2,000.00 per month after retirement would be too low. We fix it at Rs.3,000.00. Therefore, after 55, for loss of earning capacity, the appellant would be entitled to Rs.1,00,440.00 as compensation for loss of earning capacity (3000 x 12 x 31 x 9/100). Out of that, only Rs.66,000.00 has been granted by the Tribunal. (The Tribunal has termed it as compensation for disability, but since the Tribunal has awarded compensation for loss of amenities as well, we are taking the same as compensation for loss of earning capacity). After deducting that amount, the appellant would be entitled to additional compensation of Rs.34,440.00 (Rupees Thirty Four Thousand Four Hundred and Forty only).;