A. Ansar v. The Managing Director, Kerala State Road Transport Corporation and Janardhanan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 MACA.No. 468 of 2008(C) ---------------------OPMV.1657/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/PETITIONER ---------------------------------- A.ANSAR, AGED 37 YEARS, VAYALIL PUTHEN VEEDU, PERAYAM, UMAYANALLOOR, KOLLAM. BY ADV. SRI.PRATHEESH.P RESPONDENTS : RESPONDENTS -------------------------- 1. MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. JANARDHANAN NAIR, KURUNGATTU VEEDU, VALIYAKULANGARA, OACHIRA, KOLLAM. ADV.JOHNSON P.JOHN FOR R1 ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.468 of 2008-C ******************************* Dated this the 29[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. The claimant is the appellant. He claimed compensation for loss suffered by him on account of personal injuries sustained by him in a motor accident which took place on 18.06.1998. He had suffered grievous injuries including fracture of both bones of the right leg. He was an inpatient for a period of 90 days. He had suffered permanent disability as a result of the accident which was certified by the Medical Practitioner to be 20% in Ext.A6 disability certificate. He was a furniture business man by profession. He claimed a total amount of Rs.1,50,000/- as compensation. 2. The Tribunal by the impugned award directed payment of a total amount of Rs.61,180/- (rounded to Rs.61,200/-) as per the details given below: |**_Sl._**<br>**_No._**|**_Head of awards_**|**_Amount awarded_**| |---|---|---| |1|Loss of earnings|Rs. 6,000.00 (4 X 1500)| |2|Transport to hospital|Rs. 2,500.00| |3|Extra nourishment|Rs. 4,000.00| 2 **M.A.C.A No.468 of 2008-C** |**_Sl._**<br>**_No._**|**_Head of awards_**|**_Amount awarded_**| |---|---|---| |4|Medicine|Rs.11,000.00| |5|Compensation for pain and sufferings|Rs.15,000.00| |6|Compensation for continuing or permanent<br>disability|Rs.22,680.00<br>(1500X 12 X 18 X 7/100)| ||**Total**|**Rs.61,180/-**<br>**rounded to Rs.61,200/-**| 3. We have heard the learned counsel for the appellant/claimant and respondents/owner/driver. The learned counsel for the appellant assails the impugned award on the sole ground that the quantum of compensation awarded is inadequate. 4. Called upon to explain and be specific, the counsel raises various grounds. First of all it is contended that the monthly income taken into consideration by the Tribunal is grossly inadequate. The appellant is a furniture business man. In any view of the matter, the amount of Rs.1,500/- reckoned as the monthly income by the Tribunal is grossly inadequate, contends counsel. The accident had taken place on 18.06.1998. Even in the absence of any better evidence, we are satisfied, in the circumstances of the case that Rs.2,500/- can safely be reckoned as the monthly income. In coming to this conclusion, 3 **M.A.C.A No.468 of 2008-C** we take note of the presumption of prudence under clause 6 of the Second Schedule to the Motor Vehicles Act, where under even a non earning person is assumed to draw an income of Rs.1,250/- per mensem from 1994. 5. The learned counsel submits that no expenses have been awarded under the head of bystander's expenses. The appellant/claimant was an inpatient for a period of 90 days. We agree that bystander's expenses ought to have been awarded. We accept that bystander's expenses for the period of 90 days could have been granted @ Rs.75/- per day. 6. The learned counsel for the appellant submits that only 7% has been reckoned as the reduction in earning capacity. The medical officer had certified 20% to be the reduction in earning capacity under Ext.A6. The appellant had appeared before the Tribunal and had tendered evidence as PW1. The nature of the disabilities certified in Ext.A6 are given in detail in para.8 of the impugned award. 8 specific items of disabilities perceived by the Medical Officer are given in detail in Ext.A6 and extracted in the impugned award. 7. The Tribunal reckoned only 7% as the reduction in earning capacity. The learned counsel submits that this is totally 4 **M.A.C.A No.468 of 2008-C** inadequate. 8. The concepts of physical disability and reduction in earning capacity are not synonymous. The Tribunal, against a certified disability of 20%, reckoned 7 as the percentage of reduction in earning capacity. Considering the nature of the alleged disability, which is narrated in detail in Ext.A6, we are of the opinion that in any view of the matter, 10% can safely be assumed to be the reduction in earning capacity. Accordingly the appellant will be entitled to a higher amount of compensation under the head of reduction in earning capacity. 9. The learned counsel for the respondent/owner points out that going by the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], only 17 ( and not 18) should have been reckoned as the multiplier. We agree with the learned counsel for the respondents. 10. Finally the learned counsel for the appellant submits that for the proved disability suffered by the appellant/claimant, a young man aged about 28 years at the time of the accident, no compensation has been awarded under the head of loss of amenities. The disability suffered by a person leaves behind two fold reflections on his life. It reduces earning capacity. It also 5 **M.A.C.A No.468 of 2008-C** impairs and reduces the quality of enjoyment of life. It also reduces the life expectancy of the individual. For all these loss suffered, we are satisfied that an appropriate amount of compensation ought to have been awarded under the head of loss of amenities and enjoyment in addition to the reduction in earning capacity. The Tribunal did not award any amount. That course adopted by the Tribunal cannot be justified. 11. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.54,070/- as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs. 4,000.00 [(2,500 X 4=10,000) minus Rs.6,000/-] ii) Bystander's expenses (No amount awarded by the Tribunal) : Rs. 6,750.00 (90 X 75=Rs.6,750 - iii) Reduction in earning capacity : Rs.28,320.00 [(2500X12 X 17 X 10/100 = 51,000) minus 22,680] - iv) Loss of amenities (no amount awarded by the Tribunal) Total : Rs.15,000.00 ------------------: Rs.54,070.00 ======== 6 ## **M.A.C.A No.468 of 2008-C** 12. We are not persuaded to agree that the amount awarded under any other head warrants or demands modification. The learned counsel for the respondents submits that there was a petition for execution of the impugned award and the said petition has been settled before the Tribunal after paying the entire amount payable under the impugned award. There is nothing to show that anything other than the execution petition was compromised and in these circumstances we are satisfied that the option of the appellant to claim further amount in addition to the amount already awarded is not in any way affected by such settlement in the course of the execution petition. ## 13. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.54,070/- (Rupees Fifty four thousand and seventy only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We direct that the appellant shall be entitled for interest on the entire amount of compensation from the date of the claim to the date of payment/realisation at the rate directed 7 ## **M.A.C.A No.468 of 2008-C** by the Tribunal subject to the rider that no interest shall be payable on the amount of enhanced compensation for the period of 1845 days – the period of delay in filing this appeal; d) All the other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/