Dama Seshadri Naidu, J.

Background:

1. Appellant Rajendran was the claimant in O.A.No.34 of 2002 before the Railway Claims Tribunal, Ernakulam. He claimed compensation because he was grievously injured in a railway accident. The accident has, in fact, led not only to his physical impairment but also to his loosing employment. Though the Tribunal awarded compensation through a judgment dated 1.4.2005, Rajendran felt it inadequate. So he has filed this appeal before us. The Dispute:

2. The facts in brief are that Rajendran, a driver in a Cooperative bank was all set to join his new employer, the Central Excise Department, on 24.06.2001—with better salary and better career prospects. But before that, as fate would have it, he undertook a journey: On 22.6.2001, he boarded Mangalore-Chennai Mail at Vadakara to go to Chennai. On route, the train met with an accident. Rajendran, among many other passengers, suffered severe injuries: a fracture to the shaft of humerus, fracture to frontal bone on the left, and sprain in the right ankle. After many days’ hospitalization, Rajendran remained an invalid with career threatening disability.

3. On the blow his career received, Rajendran averred that he lost his job in the cooperative bank; he also lost his future employment as driver in the Central Excise Department, which he would have joined on 24th June 2001 but for the accident.

4. Under these circumstances, Rajendran filed a claim petition contending that he suffered disability above 40%, that given the nature of disability, especially to his left arm, he lost his employment in the present, and that he lost his future employment prospects, too, because his injury rendered him unsuitable to be a driver. This is, of course, besides the pecuniary loss he suffered due to the accident.

5. So Rajendran claimed Rs. 3 lakh as compensation. Eventually, the Tribunal on merits has found that Rajendran sustained two fractures, had been hospitalized for 37 days, and suffered a permanent disability of 25%, disabling himself from resuming his driving activities for one year. Under these circumstances, it granted Rs. 2 lakh as compensation with interest at 6% a year from the date of the case till payment of the award amount.

Submissions:

Appellant’s:

6. Assailing the award, Sri M. P. Krishnan Nair, Rajendran’s counsel, has contended that the Tribunal ought to have allowed the full compensation of Rs. 4 lakh with interest at 4% a year from the date of the accident till the date of payment. According to him, besides awarding the maximum amount under the Railways Act, 1989, the Tribunal ought to have left Rajendran’s right open to claim further liquidated amounts under the common law. Sri Nair also contended that the Tribunal ought to have given interest from the date of the accident, but not from the date of the case—and @ 24% a year, at that.

7. Sri Nair has further contended that the Tribunal has grossly erred in holding that Rajendran’s permanent disability is only 25%; it must be reckoned as 100%, for Rajendran was a driver. The Railways’:

8. On the other hand, Smt. Lizamma Augustine, the learned Standing Counsel for the Indian Railways, has contended that from the verification of the list of passengers who sustained injuries in the train accident, it emerges that Rajendran sustained grievous injury. She has also submitted that Rajendran was initially paid Rs. 25,000 ex-gratia.

9. To elaborate, Smt.Augustine has submitted that Rajendran was treated as an in-patient at Medical College Hospital, Calicut, and was discharged on 27.6.2001. She has also submitted that Rajendran was paid the entire medical expenditure he incurred while he was treated in Medical College Hospital, Calicut—Rs. 1307/-. According to her, Rajendran has exaggerated his disability and the claim, too.

Discussion:

10. To begin with, the Railways has admitted the accident. And the disability, too. The bone of contention pertains to percentage of the disability and the method of computing