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Judgment
S. Siri Jagan, J.—The appellant is the claimant in O.P. (M.V.) No. 803/2003 before the Motor Accidents Claims Tribunal, Kottayam. He suffered injuries in an accident caused by the negligent driving of a vehicle owned and driven by the 1st respondent and insured with the 2nd respondent. He filed the O.P. claiming compensation for the injuries and consequent disability sustained by him in the accident. The Tribunal, after finding negligence on the part of the 1st respondent driver, awarded compensation under various heads as follows:
Head of claim
Amount
awarded
1 Loss of leave
4,000.00
2 Transportation expenses
1,000.00
3 Extra nourishment andamp; bystander''s expenses
1,000.00
4 Medical expenses
2,250.00
5 Pain and sufferings
8,000.00
6 Loss of amenities
7,000.00
Total
(sic) 23,550.00
Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhanced compensation.
The first contention raised by the appellant is that the appellant had sustained head injuries and the compensation awarded is not commensurate with the injuries and consequent disability sustained by him. It is submitted that the appellant was on leave from 8.1.2003 to 30.1.2003, despite which, only an amount of Rs. 4,000/- was awarded for loss of leave. Although the appellant was hospitalized for seven days, for both bystander''s expenses and extra nourishment, only an amount of Rs. 1,000/- has been awarded. The compensation for pain and sufferings of Rs. 8,000/- is palpably low considering the injuries sustained by him and the period of hospitalization. No amount has been awarded for loss of earning capacity. Only Rs. 7000/- has been awarded for loss of amenities in life. Therefore, on all heads, the compensation awarded is very low is the contention raised.
The learned Standing Counsel for the insurance company argues for sustaining the award.
We have considered the rival contentions in detail. At the outset we note that the appellant was a serving police constable in the police force of the State of Kerala. He was 47 years old at the time of the accident on 8.1.2003. As per Ext. A8, his salary has been proved as Rs. 6,735/-. The appellant has no case that the appellant lost his employment or that his salary was reduced on account of the alleged disability suffered by him. As such, at least till the date of his retirement, the appellant will not be entitled to any compensation for loss of earning power insofar as he was receiving the same and more salary than what he was receiving prior to the accident. Of course, this Court referred the appellant for examination by a medical board. Originally, a medical board of the Medical College Hospital, Kottayam, forwarded a certificate showing that the appellant was a manual labourer and because of headache, dizziness, loss of memory and forgetfulness, 5% permanent disability was certified. At the request of the counsel for the appellant, the appellant was again referred to the medical board at Medical College Hospital, Alappuzha. The medical board has now certified 25% permanent disability without giving any details as to what is the actual disability suffered by the appellant and without giving any reason for such assessment. As such, there is considerable doubt regarding the acceptability of the percentage of disability certified by the medical board. It is a fact that despite the alleged disability, the appellant continued in service and retired from service in 2011. He also received promotion as well. If that be so, it is clear that the alleged disability has not much effected his earning capacity, because if it had in any way affected his duties as a police man, he would have certainly been removed from service on medical grounds. Still, we are of opinion that the appellant should be given some compensation for loss of earning power after his retirement. For that purpose, we fix the notional monthly income of the appellant after his retirement as Rs. 3000/-. We are inclined to accept 10% disability for the purpose of calculating loss of earning capacity. The appellant was 47 years old at the time of the accident. The multiplier applicable to a 47 year old person is 13 as per the decision of the Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The appellant relies on the decision of a Division Bench of this Court in M.A.C.A. No. 1627/2006 for the proposition that despite the fact that the insured person, who suffered the disability continued in service, he is entitled to compensation for loss of earning power taking into account the multiplier based on his age at the time of the accident itself without reference to whether the disability has affected his income. We do not find any law laid down by this Court in that decision as suggested by the learned counsel for the appellant. When a person who is stated to have suffered disability continues in service earning the same or more income, he cannot be given compensation for loss of earning capacity at least till he ceases to be in employment. Otherwise that will be giving him a bonanza and he will be getting the income he was receiving prior to the accident or more and he will also be getting compensation for loss of earning power as well, which amounts to unjust enrichment and is not permissible under law. We are of opinion that for this purpose, from the multiplier applicable for a person of 47 years age, the period during which he would be in service has to be deducted and for the period after is retirement, the compensation for loss of earning capacity should be awarded for the balance of the multiplier. In this case, from 13, 8 has to be deducted because the appellant had retired at the age of 55. The balance multiplier would be only 5. The appellant is entitled to compensation for loss of earning capacity after retirement for the monthly income of Rs. 3,000/- taking the multiplier as 5. Calculated thus, the appellant would be entitled to compensation of Rs. 18,000/-. We award that amount in this appeal since no amount has been awarded by the Tribunal for loss of earning capacity for the period even after retirement. We are of opinion that in view of the medical records produced by the appellant, the appellant is entitled to get some more amounts towards pain and sufferings, since it is certified in the document that he had suffered some head injury. So we enhance the compensation for pain and sufferings to Rs. 15,000 from Rs. 8,000/-. Likewise, we are inclined to enhance the compensation for loss of amenities in life from Rs. 7000/- to Rs. 15,000/- considering his permanent disability, which will effect his personal life as well. We are of opinion that the compensation for extra nourishment and bystander''s expenses together of Rs. 1000/- is on the lower side. The appellant was in hospital for seven days. So he is entitled to compensation for bystander''s expenses for seven days at the rate of Rs. 100/- per day. So we enhance the compensation for bystander''s expenses and extra nourishment by Rs. 2,000/- over and above the Rs. 1000/- awarded by the Tribunal, making the total Rs. 3000/-. We are not inclined to enhance compensation under other heads, since, according to us, just and proper compensation has been awarded under other heads. Consequently, over and above what has been awarded by the Tribunal, the appellant would be entitled to get additional compensation of Rs. 35,000/-, which amount would carry interest at the rate of 9% per annum from the date of the claim petition till date of payment. The 2nd respondent insurance company is directed to deposit this amount also within two months.
With the above modification of the impugned judgment of the Tribunal, this appeal is disposed of.