Abdul Saleem v. Mohammed Ismail Khan & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 MACA.No. 1315 of 2011() ----------------------O.P.(MV) NO.1216/2009 OF PRINCIPAL M.A.C.T. KOZHIKODE APPELLANTS/PETITIONERS IN OP(MV) -------------- ABDUL SALEEM, S/O.MOYINKUTTY, CHAMADATH HOUSE,PERUMANNA POST, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS IN OP(MV) --------------- 1. MOHAMMED ISMAIL KHAN, S/O.MURTHUZA KHAN,NAGARLE VILLAGE POST, NAJANGUD,MYSORE,KARNATAKA-571 301. (OWNER CUM DRIVER OF MAXI CAB NO.KA-09/1998) 2. THE NEW INDIA ASSURANCE CO.LTD, III CROSS RP ROAD,EXTENTION,NANJANGUD,MYSORE, (INSURER OF THE MAXI CAB BEARING REG.NO.KA-09/1998) 673 001. 3. MUJEEB RAHMAN,NADUVILAKALATHIL HOUSE, THADATHIL PARAMBU,NARUKARA,MANJERI,MALAPPURAM (OWNER OF THE CAR BEARING REG.NO.KL-10/V-7470) 676121 4. THE RELIANCE GENERAL INS.CO.LTD, OPP.TAGORE CENTENARY HALL,KOZHIKODE (INSURER OF HYUNDAI SANTRO BEARING REG.NO.KL-10/V-7470) 673 001. - ADV. SRI.VIJU THOMAS FOR R2 ADV.M.MEENA JOHN SC FOR RESPONDENT THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1315 of 2011 ---------------------------------------Dated this the 14[th] day of October 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for the personal injuries suffered by him in a motor accident which took place on 03/07/2008. He had suffered multiple serious injuries. He was an in-patient in two spells from 03/07/2008 to 23/07/2008 and from 26/7/2008 to 18/08/2008 (total period of 45 days). He had suffered permanent disability to the extent of 60% as certified by the medical board in Ext.C1. He is a qualified driver and Ext.A4 is the driving licence produced. Against a total claim of Rs.10,00,000/-, the tribunal by the impugned award directed payment of an amount of Rs.8,84,505/- as per the details in paragraph 11 of the impugned award which we extract below: |**_The compensation claimed under_**<br>**_different heads_**|**_Amount claimed (Rs.)_**|**_Amount allowed_**<br>**_(Rs.)_**| |---|---|---| |1. Loss of earning|1,00,000/-|18,000/- (3,000 x<br>6 months)| |2. Transport to hospital|10,000/-|2,000/-| |3. Extra nourishment|10,000/-|2,000/-| |4. Damage to clothings and other articles|2,000/-|1,000/-| 2 M.A.C.A.No.1315 of 2011 |**_The compensation claimed under_**<br>**_different heads_**|**_Amount claimed (Rs.)_**|**_Amount allowed_**<br>**_(Rs.)_**| |---|---|---| |5. Treatment expenses|5,60,000/-|4,91,405/- (as per<br>the Ext.A5 series)| |6. Bystander's expenses|Nil|4,500/- (100 x 45<br>days)| |7. Pain and sufferings|30,000/-|20,000/-| |8. Permanent disability|3,00,000/-|3,45,600/-<br>(3,000x12x16x60/<br>100)| |Total||**8,84,505/-**| 2. 2[nd] respondent/insurance company was made entirely liable under the impugned award. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The challenge is directed only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the tribunal erred grossly in reckoning the monthly income of the appellant at Rs.3,000/- only. The appellant was a qualified driver as evidenced by Ext.A4. In these circumstances, higher monthly income must have been taken into consideration while awarding compensation for loss of earnings and loss of earning capacity. We agree that Rs.3,500/- per mensum can safely be accepted as the monthly income of the appellant. The learned counsel then contends that going by the second schedule to the Motor 3 M.A.C.A.No.1315 of 2011 Vehicles Act, 17 and not 16 should have been adopted as the multiplier in the case of permanent physical disability. The decision in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** has to be preferred only when compensation is computed for death. For compensation for reduction in earning capacity consequent to physical disability second schedule to the M.V.Act must be profitably preferred, contends learned counsel for the appellant. We find merit in that contention. We are satisfied that 17 can be accepted as the multiplier for the appellant who belongs to the age group of 30-35 years. 4. The learned counsel for the appellant contends that only an amount of Rs.2,000/- has been awarded as compensation for extra nourishment. He was an in-patient for a period of 45 days. Treatment had continued thereafter. Six months involuntary unemployment is accepted by the tribunal. The amount of compensation awarded under the head of extra nourishment is not just, contends counsel. We accept this contention. We are satisfied that for extra nourishment, compensation at the rate of Rs.100/- per day for the period of hospitalisation can be awarded. 5. The learned counsel for the appellant next contends 4 M.A.C.A.No.1315 of 2011 that no amount of compensation has been awarded under the head of loss of amenities. 60% physical disability has been suffered. This physical disability in addition to reduction in earning capacity does also impair and reduce the quality of enjoyment of life. For this dimension of loss, no amount is awarded, contends counsel. We accept this contention. We are satisfied that appropriate amount of compensation ought to be awarded under the head of loss of amenities. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.1,18,300/- as compensation in addition to the amount awarded by the tribunal. i) Loss of earnings : Rs. 3,000.00 (3500 X 6 minus 18,000) ii) Extra nourishment : Rs. 2,500.00 (45X 100 minus 2000) iii) Reduction in earning capacity : Rs. 82,800.00 (described as permanent (3500X12X17X60/100 = disability by the 4,28,400 minus 3,45,600) Tribunal) iv) Loss of amenities : Rs. 30,000.00 (no amount awarded by the Tribunal) --------------------Total : Rs.1,18,300.00 ========= 5 M.A.C.A.No.1315 of 2011 7. We are not satisfied that the amount awarded under any other head by the Tribunal requires or warrants interference. Interest has been awarded at 7% per annum. Only an amount of Rs.1,000/- has been awarded as cost. The learned counsel argues and we agree that proportionate cost in the proceedings before the Tribunal deserves to be awarded as held ## in **Jeena V. Satheesh Babu.K** [2011(3) KLT 943] . 8. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.1,18,300/- (Rupees One lakh eighteen thousand three hundred only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) The appellant shall be entitled for the proportionate cost before the Tribunal as held in **Jeena V. Satheesh Babu.K** (supra); M.A.C.A.No.1315 of 2011 6 e) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A.No.1315 of 2011 7 8 M.A.C.A.No.1315 of 2011 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010