Point of Law : victim of a motor accident shall be entitled for compensation for loss of pay during the period he availed commuted leave, consequent to the injuries.

JUDGMENT :

The appellant is the petitioner in OP(MV)No.1756/2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The said original petition was filed seeking compensation for the injuries sustained to him on a motor accident occurred on 22.07.2010, when the motor cycle ridden by him was hit by a car. The car was driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent. Consequent to the accident, he sustained very serious injuries. He was treated at Baby Memorial Hospital, Kozhikode for several days. According to the appellant, he was working as a Draftsman Gr.1 in Kerala Water Authority and he was aged 50 at the time of accident. He contends that he sustained permanent disablement of serious nature consequent to the injuries. Accordingly, he claimed a total compensation of Rs.20 lakhs.

2. The driver and the owner who are respondents 1 and 2 remained absent and they were set ex-parte. The 3rd respondent filed a written statement disputing the negligence on the part of the 1st respondent and contended that the accident occurred due to the negligence of the appellant himself. The quantum of compensation was also disputed. However, the existence of valid policy in respect of the said vehicle was admitted.

3. The appellant got himself examined as PW1 and Exts. A1 to A13 were marked from the side of the appellant. Disability certificate issued by the Medical Board was marked as Ext.C1. No evidence was adduced from the side of the respondents.

4. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence of the 1st respondent and, therefore, being the insurer of the vehicle, the 3rd respondent was held responsible to pay the amount of compensation. As quantum of compensation, the Tribunal fixed an amount of Rs. 8,60,307/-and the 3rd respondent was directed to deposit the said amount along with interest at the rate of 8% per annum from the date of petition till realization. Being dissatisfied with the quantum of compensation, this appeal is filed.

5. Heard the learned counsel for the appellant and the learned counsel for the 3rd respondent.

6. The learned counsel for the appellant would contend that the quantum of compensation awarded by the Tribunal is very low particularly in the heads of loss of earning power, medical expenses and actual loss of earnings.

7. Per contra, the learned counsel for the 3rd respondent disputed the contentions put forward by the appellant by submitting that the award passed by the Tribunal does not warrant any interference as the amount mentioned therein is reasonable in the facts and circumstances of this case.

8. One of the crucial contentions raised by the learned counsel for the appellant is that, even though the Medical Board certified his percentage of disability as 86%, the Tribunal granted compensation for loss of earning power only by taking into account the probable loss of earning capacity after his retirement. The learned counsel further points out that the monthly income taken by the Tribunal was Rs.3,500/-whereas the documents produced by him would clearly reveal that as on the date of accident, he was getting monthly income of Rs.26,400/-. From the materials available on record, it can be seen that, despite the injuries sustained by the appellant, he continued in his employment and the finding of the Tribunal that he has not sustained any loss of earning capacity during the period of his service with the Kerala Water Authority is a probable view. In my view it is a sustainable finding as he could continue in the service upto his retirement age at 56. Consequently, the question of loss of earning power would arise only for the period after his retirement. In this regard, it is to be noted that, even though Ext.C1 certified the percentage of disability as 86%, the Tribunal accepted the functional disability as 50% in view of the reason that the percentage of disability as certified in Ext.C1 was with respect