Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 505 (KER)

George v. Krishna Venu, S/o. Gangadharan

2020-06-19

N.NAGARESH

body2020
JUDGMENT : 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 Rs.2,00,000/- from the 1st respondent-owner, 2nd respondent-driver and the 3rd respondent-insurer. The driver and owner remained ex parte and only the 3rd respondent insurer contested the claim. The 3rd respondent stated that there was no negligence on the part of the 2nd respondent-driver 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 Rs.37,153/-as compensation under the following heads:- Sl. No. The compensation claimed under different heads Amount claimed Amount allowed Basis/vital details in a nutshell 1 Loss of earnings 75,000/- 11,521/- Relying on Ext.A14 2 Transport to hospital 3,000/- 1,000/- 3 Damage to clothings and 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 3rd respondent to pay the amount within thirty 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 Rs.15,000/-granted by the Tribunal as against a claim of Rs.40,000/-towards pain and suffering, is unjust. Similarly, towards a claim of Rs.75,000/-for loss of earnings, the Tribunal awarded only Rs.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. 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 salary of Rs.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 Rs.75,000/-as compensation for loss of earning, the Tribunal allowed only Rs.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. 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. 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 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 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. 14. The question is when an employee, consequent to a 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 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 earnings for the leave period of 83 days. Consequently, it is declared that the appellant will be entitled to Rs.95,000/-as total compensation towards loss of earning. 16. In the circumstances, this Court holds that the appellant is entitled to additional compensation towards loss of earnings for the leave period of 83 days. Consequently, it is declared that the appellant will be entitled to Rs.95,000/-as total compensation towards loss of earning. After deducting Rs.11,521/-already awarded by the Tribunal, the appellant will be entitled to Rs.83,479/-as additional compensation towards loss of earning. The 3rd 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.