George v. Krishna Venu and Sunil K and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **MACA.No.2255 OF 2013(C)** **AGAINST THE AWARD IN OP(MV)No.1251/2011 DATED 30-11-2012 ON THE FILES OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **GEORGE, AGED 55 YEARS, S/O.JOSEPH, RESIDING AT KURINSHUNKAL HOUSE, P.O.KATTIPARA(VIA), THAMARASSERY, KOZHIKODE.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI. M.V. DAS SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**KRISHNA VENU,**| |---|---| ||**S/O.GANGADHARAN,**| ||**AGE NOT KNOWN,**| ||**RESIDING AT BINDHU NIVAS,**| ||**PULLUKAVIL.P.O,**| ||**MUKKAM,**| ||**KOZHIKODE.695001**| |**2**|**SUNIL.K,**| ||**S/O.GOPALAN,**| ||**AGED 35 YEARS,**| ||**RESIDING AT KANNANPARAMBA HOUSE, P.O.CHERUVADI,**| ||**MAVOOR,**| ||**KOZHIKODE.695006**| |**3**|**THE NATIONAL INSURANCE COMPANY LIMITED,**| ||**2ND FLOOR,**| ||**NOOR COMPLEX,P.B.NO.811,**| ||**MAVOOR ROAD,**| ||**KOZHIKODE.695006**| **MACA.No.2255 OF 2013(C)** **:2:** **BY ADV. SRI.PMM.NAJEEB KHAN SRI RAJESH THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2255 OF 2013(C)** **==> picture [23 x 9] intentionally omitted <==** ## **[CR]** **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 19[th] day of June, 2020**_ The appellant, who is the petitioner in OP(MV) No.1251/2011 of the Principal Motor Accidents Claims Tribunal, Kozhikode, is in appeal aggrieved by Award dated 30.11.2012. 2. The appellant met with a road traffic accident while travelling in a car on 02.07.2011. A tipper lorry hit the car causing serious injuries to the appellant. The appellant was treated in a hospital as an inpatient for five days. 3. The appellant filed OP(MV) and claimed a compensation of ₹2,00,000/- from the 1[st] respondent-owner, 2[nd] respondent-driver and the 3[rd] respondent-insurer. The driver and owner remained _ex parte_ and only the 3[rd] respondent- **MACA.No.2255 OF 2013(C)** ## **:4:** insurer contested the claim. The 3[rd] respondent stated that there was no negligence on the part of the 2[nd] respondentdriver and the amount of compensation claimed is exorbitant. 4. The appellant produced Exts.A1 to A15 documents. The respondents did not adduce any oral or documentary evidence. The Tribunal, on appreciation of evidence, held that the appellant is entitled to an amount of ₹37,153/- as compensation under the following heads:- |**Sl.**<br>**No.**|**The compensation**<br>**claimed under different**<br>**heads**|**Amount**<br>**claimed**|**Amount**<br>**allowed**|**Basis/vital**<br>**details in a**<br>**nutshell**| |---|---|---|---|---| |1|Loss of earnings|75,000/-|11,521/-|Relying<br>on<br>Ext.A14| |2|Transport to hospital|3,000/-|1,000/-|| |3|Damage to clothings and<br>other articles|2,000/-|500/-|| |4|Treatment expenses|45,000/-|8,632/-|| |5|Pain and sufferings|40,000/-|10,000/-|| |6|Loss of amenities of life|20,000/-|5,000/-|| ||**Total**||**37,153/-**|| The Tribunal awarded interest at the rate of 7% per annum and directed the 3[rd] respondent to pay the amount within thirty **MACA.No.2255 OF 2013(C)** **==> picture [23 x 9] intentionally omitted <==** days. Aggrieved by the award of low amount of compensation, the appellant has preferred this MACA. 5. The learned counsel for the appellant stated that the amount of ₹15,000/- granted by the Tribunal as against a claim of ₹40,000/- towards pain and suffering, is unjust. Similarly, towards a claim of ₹75,000/- for loss of earnings, the Tribunal awarded only ₹11,521/-. The further grievance of the appellant is that the Tribunal awarded interest only at the rate of 7%. The Tribunal ought to have granted interest at least at the rate of 9% per annum. 6. I have heard the learned counsel for the appellant and the respondents. 7. The appellant was aged 55 years and was working as a Headmaster in an aided school at the time of the accident. Though consequent to the accident, he was treated as inpatient for five days in hospital, it has come out in evidence that he had to take leave on medical grounds for 93 days. The appellant being a Headmaster of an Aided School, his monthly **MACA.No.2255 OF 2013(C)** **:6:** salary of ₹34,565/-, is not in dispute. It is also an admitted fact that the appellant has to retire at the age of 56. 8. After going through the Award of the Tribunal, I find that the compensation amount awarded by the Tribunal towards transport to hospital, damage to clothing, treatment expenses, pain and suffering and loss of amenities are appropriate and can be termed as “just compensation”. 9. The contention of the learned counsel for the appellant is that though the appellant claimed ₹75,000/- as compensation for loss of earning, the Tribunal allowed only ₹11,521/-. This has substantially affected award of a low compensation, it is contended. 10. It is an admitted position that the appellant was drawing a net salary of 34,565/- as evidenced by Ext.A14. It is also an admitted position that though the period of hospitalisation is only five days, the appellant had to take leave for 93 days after the accident, for treatment. The Tribunal, however, granted loss of earnings only for a period of ten days. **MACA.No.2255 OF 2013(C)** ## **:7:** 11. The learned counsel for the appellant submitted that the Tribunal took the time period of ten days for the reason that as per Ext.A14 certificate, it was only for ten days that the appellant was on Leave Without Allowance. The Tribunal declined compensation for loss of earning for the remaining 83 days of leave, on the ground that those leaves were commuted leaves. The findings of the Tribunal on this aspect, found in paragraph 10 of the Award, are as follows:- “10. Petitioner is claiming loss of earnings during the period of treatment. Admittedly he is an school teacher and he is entitled to get loss of earning if he had availed leave without allowance during the period. Ext.A14 is the certificate issued from the Headmaster of the school showing that he was on leave without allowance for 10 days from 04.10.2011 to 13.10.2011. All other leaves are commuted leaves and so he is not entitled to get any amount during this period. Ext.A14 further shows he was getting a net salary of Rs.34,565/after deducting income tax, SLI and GIS. So for the 10 days he is entitled to get Rs.11,521/- as loss of earnings.” The question to be considered in this appeal is with regard to the sustainability of the afore findings of the Tribunal. 12. The appellant was Headmaster of an Aided School **MACA.No.2255 OF 2013(C)** **==> picture [23 x 9] intentionally omitted <==** at the time of an accident. He is governed by Kerala Service Rules. Rule 82 of Chapter IX of KSR provides that half pay leave as provided in Rule 83 may be availed of on private affairs or on medical certificate. Rule 84 states that Commuted Leave not exceeding half the amount of Half Pay Leave due may be granted to an Officer in permanent employ. When Commuted Leave is granted twice the amount of such leave shall be debited against the Half Pay Leave due. 13. From the evidence on record, the Tribunal has come to a conclusion that all leaves other than ten days Leave Without Allowance, taken by the appellant, are Commuted Leaves. It is for that reason that the Tribunal has held that the appellant is not entitled to get any amount during the Commuted leave period. From the KSR, it is obvious that for availing 83 days Commuted Leave, the appellant will be sacrificing twice the amount of such leave which shall be debited against Half Pay Leave due. 14. The question is when an employee, consequent to a **MACA.No.2255 OF 2013(C)** **==> picture [23 x 9] intentionally omitted <==** motor accident, is forced to avail leave due to his credit, whether the employee is liable to be compensated for the said period for loss of earning. It is clear that had the employee did not meet with the accident, the employee could have availed those leaves at his own leisure and may even be able to encash those leaves if permissible under the applicable rules. In _**United India Insurance Co. Ltd. v. Shyam Kumar and** others [2006 ACJ 2092]_ , the Jabalpur Bench of the Hon'ble Madhya Pradesh High Court had occasion to consider this aspect and held as follows:- “So far quantum of compensation is concerned, the Claims Tribunal has given proper and appropriate reasons to award the amount on each and every heads which do not require any interference, although during leave period the respondent No. 1 received his salary from his employer but such leave could have been utilized for some other purpose, so in this way he got this loss.” Leave is a legal entitlement of an employee, but not a prerogative. It is a conditional right and an inseparable piece of employment package. Exercise of the conditional right is **MACA.No.2255 OF 2013(C)** **==> picture [30 x 9] intentionally omitted <==** always subject to sanction by employer. Earned leave is granted to an employee for planned long leaves for the purpose of travel, vacation, etc. Leaves under other heads are also granted for specific purposes. When an employee is forced to avail those leaves consequent to a road traffic accident, he is losing his prerogative to the extent the leave availed for treatment and recuperation. In such circumstances, there is no reason why the employee should not be compensated for loss of such leaves. 15. Therefore, when an employee meets with accident and is forced to undergo medical treatment for long, then even if the employee has availed eligible leave for undergoing treatment, for the purpose of calculating loss of earnings in a claim under Section 166A of the Motor Vehicles Act, 1988, a Claims Tribunal has to compensate the employee for the loss of leave period by awarding appropriate amount. 16. In the circumstances, this Court holds that the appellant is entitled to additional compensation towards loss of **MACA.No.2255 OF 2013(C)** **==> picture [30 x 9] intentionally omitted <==** earnings for the leave period of 83 days. Consequently, it is declared that the appellant will be entitled to ₹95,000/- as total compensation towards loss of earning. After deducting ₹11,521/- already awarded by the Tribunal, the appellant will be entitled to **₹83,479/-** as additional compensation towards loss of earning. The 3[rd] respondent is directed to deposit the said amount with 7% interest, within a period of one month. MACA is partly allowed to the above extent. Sd/- **N. NAGARESH, JUDGE** aks/16/06/2020