ABOOBAKER ALIAS NAZAR v. LALY OUSEPH and NATIONAL INSURANCE CO., LTD.

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 17TH OCTOBER 2011 / 25TH ASWINA 1933 MACA.No. 1883 of 2009() ----------------------OPMV.2459/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... ## APPELLANT/PETITIONER ------------------------ ABOOBAKER ALIAS NAZAR,36 YEARS, S/O.CHEKKU,CHAKKAMMADOM,KAPPALANDIMUKKU, COCHIN-2,ERNAKULAM. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENTS/RESPONDENTS -------------------------- 1. LALY OUSEPH,MANAGING DIRECTOR,ST.BASIL GRANITES,POOVANCHIRA.P.O,TRICHUR. 2. NATIONAL INSURANCE CO.,LTD.,JEWS STREET ROAD,PADMA JUNCTION, M.G.ROAD,COCHIN-16.POLICY ISSUED BRANCH TRICHUR. SC ADV. SRI.M.A.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1883 of 2009 ---------------------------------------Dated this the day of 17[th] October of 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 24/08/2004. He was a fish seller by occupation. He had suffered serious injuries including fracture of left tibia. He had suffered injury to the right calf. He had to undergo treatment as an in-patient for four spells for a total period of 31 days. According to him, he had suffered permanent disability to the tune of 15%. Against a total claim of Rs.2,96,000/-, the tribunal awarded only an amount of Rs.1,17,000/- as per the details given in paragraph 12 of the impugned award which we extract below: |**_Head_**|**_Amount awarded (Rs.)_**| |---|---| |Transportation, hospitalisation, attendant<br>expenses, extra nourishment & damage to<br>clothings|20,000/-| |Medical expenses|50,000/-| |Loss of earnings|12,000/-| |pain and suffering|20,000/-| |for loss of amenities, discomforts &<br>inconveniences and temporary disability|15,000| |Total|**1,17,000/-**| 2 M.A.C.A.No.1883 of 2009 2. The insurance company has been made entirely liable under the impugned award. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. 3. The appellant claims to be aggrieved by the impugned award. Called upon to explain and be specific, the learned counsel for the appellant challenges the impugned award on the short ground that the quantum of compensation awarded is inadequate. The learned counsel for the appellant first of all contends that the monthly income of the appellant, a fish seller has been reckoned at Rs.3,000/- by the tribunal. He relies on Ext.A10 certificate issued by the Fish Merchant Association at the Cochin Fisheries Harbour which suggests that the petitioner was getting an average monthly income of Rs.4,000/- to Rs.5,000/-. The learned counsel for the insurance company alertly points out that even according to the claimant, his monthly income was Rs.3,000/- and that has already been accepted by the tribunal also. We are not persuaded to agree that the monthly income reckoned by the tribunal at Rs.3,000/deserves any appellate interference by us. 3 M.A.C.A.No.1883 of 2009 4. The learned counsel for the appellant next points out that though medical bills for a total amount of Rs.74,605/- were produced, the tribunal was not justified in accepting only Rs.50,000/- as medical expenses incurred. The tribunal excluded a bill for Rs.5,540/-. The tribunal further proceeded to slash down the medical expenses to Rs.50,000/- (on the only ground that some of the medical bills issued by private druggists are not supported by medical prescriptions). The learned counsel for the appellant submits that this course adopted by the tribunal is not justified. We find force in that submission. We are satisfied that Rs.69,000/- can safely be reckoned as the medical expenses incurred. A further amount of Rs.19,000/- is hence liable to be awarded under that head. 5. The main ground of challenge is that the tribunal did not award any amount for physical disability suffered. We see that an amount of Rs.15,000/- has been awarded as compensation for loss of amenities even without any specific finding on the question of disability. The learned counsel for the appellant points out and we accept that the tribunal has omitted to take note of Ext.A4 disability certificate issued by an Associate 4 M.A.C.A.No.1883 of 2009 Professor of Orthopedic Surgery in the Medical College Hospital, Thrissur. That reveals that the appellant had suffered whole body disability of 15%. It is of course true that the author of Ext.A4 has not been examined. But we take note of the contents of Ext.A4. We take note of the nature of injury and the period of treatment and also the nature of the procedures undergone. We are satisfied, in these circumstances, that the appellant has indisputably suffered permanent disability. 15% is the permanent disability shown in Ext.A4. The author of the same having not been examined and the precise computation of the extent of reduction in earning capacity having not been attempted even, we are satisfied, looking into the details available in Ext.A4 and the nature of injuries, period of treatment and nature of procedures undergone that the appellant must have inevitably suffered reduction in earning capacity to the extent of 12% as a result of the injury suffered by him. We are satisfied that he is entitled to compensation for such reduction in earning capacity by employing multipliermultiplicand method. He is shown to be a person aged between 30-35 years and going by the second schedule to the Motor 5 M.A.C.A.No.1883 of 2009 Vehicles Act 17 must be accepted as the multiplier while computing compensation for permanent disability. 6. We are not persuaded to agree that the amounts awarded under any other head by the tribunal warrants interference. We further clarify that proportionate cost awarded by the tribunal shall be calculated as per the decision in J **eena v.** ## **Satheesh Babu.K [2011(3) KLT 943].** **7.** The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.92,440/- as compensation in addition to the amount awarded by the tribunal. - i) Medical and miscellaneous expenses Rs.19,000/(Rs.69,000/- minus Rs.50,000/-) ii) Reduction in earning capacity Rs.73,440/(Rs.3,000/- x 12 x 17 x 12/100) (No amount awarded by the tribunal) **--------------Total Rs.92440/========** 8. In the result, - a) This appeal is allowed in part. - b) Appellant is found entitled to a further amount of - Rs.92,440/- (Rupees ninety two thousand four hundred and forty only) in addition to the amount already awarded by the Tribunal. 6 M.A.C.A.No.1883 of 2009 c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period specified by the tribunal in the impugned award. d) Proportionate cost before the tribunal shall be paid as per the decision in **Jeena** (Supra). e) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1883 of 2009 7 8 M.A.C.A.No.1883 of 2009 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010