Compensation calculations must reflect realistic post-retirement income loss, as established by legal precedent and evidence of disability.

JUDGMENT

Dated this the 29th day of August, 2022 This appeal is at the instance of the petitioner in O.P.(MV).No.947/2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam and the award in the above case is under challenge before this Court. The respondents herein are the respondents before the Tribunal.

2. Heard the learned counsel for the appellant as well as the learned counsel for the insurer.

3. The summary of the case is as follows:

The appellant, who was aged 48 years at the time of accident and was working as shift in charge at the Travancore Cochin Chemicals Limited, Udyogamandal, had met with an accident and in consequence thereof, he sustained injuries. Accordingly, he approached the Tribunal and lodged claim petition under Section 166 of the MV Act, alleging negligence on the part of the third and sixth respondents, the drivers of bus bearing registration No.KL-8/K-5520 and lorry bearing registration No.KL-3-P-7673, respectively. According to the appellant, he sustained injuries while he travelling in the bus at the time of accident.

4. Respondents 1, 2, 4, 5 and 7 were declared ex parte by the Tribunal.

5. The third respondent filed written statement disputing the accident and negligence while admitting the policy. The quantum was also disputed.

6. The sixth respondent filed written statement disputing the accident and negligence while admitting the policy. The quantum was also disputed. Tribunal adjudicated the matter relying on Exts.A1 to A14 marked on the side of the appellant since no evidence let in by the respondents. Finally, the Tribunal granted Rs.97,300/- as compensation along with 8% interest per annum.

7. The appellant sustained injuries, viz.

compound comminuted fracture right humerus and ulna. Dislocated elbow large lacerated wound on the posterior aspect from upper 1/3rd of humerus to lower 1/3 of forearm exposing humerus elbow and forearm. Multiple small fractures of lower end of humerus and loss of fairly big portion of medial condyle. All Neuro vascular structures are exposed. Feeble radial pulse. Further, the appellant's humerus and forearm were fixed with plates and screws. Elbow was very unstable due to loss of bone. Fractures were fixed and elbow transfixed temporarily with a K wire. Wound closed wherever feasible. Rest of the area covered with skin graft. POP slab was also given.

8. Since the ‘post retirement disability’ and ‘income’ thereof fixed by the Tribunal while accepting 28% disability to the appellant, who sustained the injuries as stated above are put under challenge by the learned counsel for the appellant, the same require re- consideration. Therefore, by applying the ratio in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], the monthly income can be fixed. Since the accident is of the year 2005, for the purpose of calculating ‘loss of post retirement disability’, Rs.5,000/- is fixed as the monthly income. The multiplier is not in dispute. Accordingly, the compensation entitled by the appellant is as under:

5,000 x 12 x 5 x 28% = Rs.84,000/-

Out of which, Rs.16,800/- was granted by the Tribunal. Thus, Rs.67,200/- more is granted under the head ‘loss of post retirement disability income.’

In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.1,64,500/- as total compensation. Out of which, Rs.97,300/- was granted by the Tribunal and the balance of Rs.67,200/- (Rupees sixty seven thousand and two hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the third and the sixth respondents, from the date of petition till the date of deposit or realisation, excluding 137 days wherein, grant of interest was specifically excluded as per order dated 18.11.2021 in C.M.Application No.1/2011.

The third and the sixth respondents are directed to deposit the same in the name of the appellant, within two months from today. On deposit, the appella