Sajan C.T. vs United India Insurance Company Ltd.

Thomas P. Joseph, J.—This appeal arises from award dated 31.10.2011 in O.P(M.V). No. 805 of 2005 of the Motor Accident Claims Tribunal, Thalassery (for short, "the Tribunal"). The appellant who is working as a Sub Inspector in the Boarder Security Force (BSF) was on leave and while at his native place, suffered injuries in a motor accident on 14.04.2005. He was riding on the pillion of a motor cycle. The car driven by the first respondent in the claim petition hit the motor cycle. The Tribunal found that the accident occurred due to the negligence of the driver of the car, assessed compensation payable at Rs. 52,850/- with interest @7.5% per annum, made the respondents in the claim petition liable and directed the respondent to deposit the said amount. The appellant is aggrieved by the quantum of compensation. The injuries suffered by the appellant are narrated in paragraph 10 of the award. It includes among others fracture of neck of 2nd to 4th metatarsal bones of the right foot, fracture of shaft of 5th metatarsal bone of the right foot and dislocation of (MTP) joint of the 5th toe (right). He underwent inpatient treatment for 9 days as revealed by Ext. A3. The appellant claimed that on account of injuries he was not able to work for a period of 103 days and suffered monetary loss. The learned counsel for the appellant contended that the said claim of the appellant was negatived by the Tribunal for the reason that there is no evidence to show that the appellant was on loss of pay during the period of 103 days. It is also contended that compensation awarded on other counts is low.

Ext. A12 is a letter issued by the Commander of the BSF stating that the appellant drew Rs. 12,112/- as pay and allowance during the month of March, 2005. The appellant stated that he had to avail leave for 103 days. The Tribunal took the view that there is no evidence to show that there was loss of income as the accident occurred while the appellant was on leave.

The learned counsel for the appellant has placed reliance on the decision in Gujarat State Road Transport Corporation Vs. Kamlaben Valjibhai Vora, . There, in paragraph 6 it is stated that even when the claimant sustained injury and was granted sick leave, he is entitled to claim compensation for the period during which he was under treatment since he could have made use of that period for some other purpose.

I am inclined to accept the principle stated therein. For, even if the appellant was on leave without loss of pay during the time he was undergoing treatment, he could have availed that leave for some other purpose. Thus there is monetary loss suffered by the appellant.

But, I am unable to accept the plea that the appellant is entitled to get loss of earnings for the entire 103 days. As revealed by Ext. A12, leave was granted for 103 days. The appellant can claim monetary benefit only for the time during which he was constrained to remain at home on account of the injuries suffered and the consequent treatment. The appellant can claim monetary benefit only for such period and not for the entire period of 103 days.

Having regard to the injuries suffered by the appellant and the period of inpatient treatment it is likely that the appellant underwent OP treatment also. Having regard to the nature and site of the fractures and inpatient and OP treatment undergone, I am inclined to think that the appellant had to undergo treatment for 90 days. It follows that claim for monetary benefit must be confined to the said period of 90 days. The salary of the appellant was Rs. 12,112/- (I do not find reason to reject that claim having regard to the age and occupation of the appellant). Compensation for loss of earnings comes to Rs. 36,336 ( Rs. 12112x3).

The learned counsel for the appellant contends that compensation payable for other grounds is low.

Rs. 10,100/- is awarded for treatment expenses based on Exts. A4, A6 and A9. It is possible that the appellant was not able to procure and produce all the medical bills. Hence a further sum of Rs. 1500/- is allowed on that count. Compensation awarded for pain and suffering ( Rs. 15,000/-) also came under challenge but I do not find reason to interfere. But, compensation awarded for loss of amenities and convenience is only Rs. 5,000/- and that appears to be on the lower side. Having regard to the nature of injury and the period of treatment a further sum of Rs. 2,500/- is allowed on that count. The additional compensation payable to the appellant comes to Rs. 40,336/-. That amount will carry interest @9% per annum from the date of application till payment.

Resultantly this appeal is allowed in part as under:

(i) In modification of the award dated 31.10.2011 in O.P(M.V). No. 805 of 2005 of the Motor Accident Claims Tribunal, Thalassery the appellant is allowed to recover a further sum of Rs. 40,336/- (Rupees Eleven Forty Thousand Three Hundred and Thirty Six Only) with interest @9% per annum from the date of application till payment from the respondent.

(ii) The respondent is directed to deposit the amount in the Tribunal within two (2) months from this day.

(iii) Parties are directed to suffer their cost in the appeal.