Anil Kumar vs Chandran J., John Kennedy & United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935** **MACA.No. 1781 of 2011 (F) --------------------------** **AGAINST THE AWARD IN OP(MV) 1621/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM DATED 31-03-2009** ## **APPELLANT(S)/PETITIONER:** ## **----------------------------------------------** **ANILKUMAR, S/O. SIVARAMA PILLAI, PUTHUSSERI THEKKATHIL, VELAMANNOOR CHERRY PARIPALLY VILLAGE, KOLLAM.** **BY ADVS.SRI.T.P.PRADEEP SRI.S.SREEDEV** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. CHANDRAN J.,** **JAISON COTTAGE, NEAR ST.VINCENT HIGH SCHOOL CHITTATTUMUKKU P.O., KANIYAPURAM, THIRUVANANTHAPURAM.695 588** **2. JOHN KENNEDY, S/O. STEPHEN, ATTARIKATHU VEEDU, PUTHENTHOPPU P.O. THIRUVANANTHAPURAM.695 586** ## **3. THE BRANCH MANAGER,** - **UNITED INDIA INSURANCE COMPANY LTD., 3RD FLOOR CNC BUILDING, LMS COMPOUND, PALAYAM THIRUVANANTHAPURAM 695 001.** **R3 BY ADV. SMT.R.REMA SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** shg/ S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1781 of 2011 -----------------------------------------------------------------Dated this the 17[th] day of December, 2013 ## J U D G M E N T ## S. Siri Jagan, J The claimant in O.P.(M.V.).No.1621/2004 before the Motor Accidents Claims Tribunal, Kollam, is the appellant herein. He suffered injuries and consequential disability in an accident, caused by the negligent driving of a vehicle, owned and driven by respondents 1 and 2 and insured with the 3[rd] respondent. He filed the O.P., claiming compensation for the injuries and consequential disability suffered by him in the accident. The tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of earning for six months|12, 000| |2|Transport to hospital|3, 000| |3|Extra nourishment|2, 000| |4|Damage to clothing and articles|500| |5|Others-Bystander expenses|13, 200| |6|Medical expenses|16, 035| |7|Compensation for pain and suffering|20, 000| |8|Continuing or permanent disability|77, 760| ||Total|1, 44, 495<br>rounded as<br>1, 44, 500| M.A.C.A. No.1781 of 2011 2 Dissatisfied with the quantum of compensation awarded by the tribunal, the appellant has filed this appeal, seeking enhanced compensation. 2. The accident was on 03.08.2004 and the appellant was 28 years old at that time. He was a manual labourer. He claimed that his income per month was ₹2,000/-. The Medical Board by Ext.C1 disability certificate certified 21% disability. But the tribunal adopted only 18% for the purpose of calculating loss of earning capacity. The appellant submits that, because of the disability, the appellant cannot do any work at all. Therefore, the percentage of disability adopted for the purpose of calculating loss of earning capacity is palpably low, is the first contention raised. The 2[nd] contention is that, although the appellant was hospitalised for 130 days and he had undergone several surgical procedures, the tribunal granted only 20,000/- towards compensation₹ for pain and suffering, which is on the lower side. It is also contended that, the tribunal has not awarded any M.A.C.A. No.1781 of 2011 3 compensation for loss of amenities in life. He submits that the compensation for loss of earnings should have been for at least one year. But the tribunal restricted it only for six months. The appellant seeks enhancement under all heads. 3. On the other hand, the learned counsel for the insurance company would seriously dispute the claims of the appellant. She would submit that if at all the tribunal has erred, that was in favour of the appellant, insofar as, instead of 17, the tribunal has adopted the multiplier of 18. The counsel argues for sustaining the award. 4. We have considered the rival contentions in detail. ## 5. In Ext.C1, the injuries and consequential disabilities have been narrated as follows: - “1. Type III compound fracture both bones right leg. 2. Multiple dento-alveolar fracture with loss of seven teeth. He was admitted at Medical College Hospital and treated at Ortho Department and Dental College. He was treated by multiple surgical procedures and external & internal fixations and followed by paster M.A.C.A. No.1781 of 2011 4 immobilization. Dental problems were treated by stabilization of fractures at Dental College. On examination he is having the following difficulties and disabilities. 1. Deformity of right leg middle 3[rd] . 2. Malunited fracture of both bones leg right side. 3. Extensive wound scar right leg. 4. Restriction of movements of ankle right side. 5. Secondary Osteo arthritis knee right side. 6. Shortening of right leg by 1 c.m. 7. Chronic pain during walking and standing. 8. Difficulty in squatting. 9. Chronic mental strain. 10. As per the available records patient has lost 6 teeth (upper right incisor, lower right and left central and lateral incisor teeth and lower right canine. He had also undergone Ellis class II of upper left central and lateral incisor teeth. - Dental occlusion stable. - TMT function within normal limit. - No sustained facial wound scar or disfigurement. - The teeth can be preserved with conservative treatment At present he is partially edentulous with chronic generalized periodentitis. He requires oral rehabilitation treatment by Partial Denture Prosthesis. The permanent /partial disability due to the above findings is 21% (Twenty One percentage).” As a manual labourer, these disabilities would practically render him unable to do the work which was doing prior to the accident. The percentage of physical disability is only an index for considering loss of earning capacity. The actual percentage of loss of earning capacity may either be higher or lower than the disability certified by M.A.C.A. No.1781 of 2011 5 the doctors, depending on the avocation and the effect of the disability on the capacity of the claimant to earn income. In this case, we have no doubt that, the disability certified by the doctors would render him incapable of doing the work he was doing earlier or any work requiring physical effort. Therefore, we are inclined to hold that his earning capacity has been reduced by at least 50%. Therefore the appellant is entitled to compensation commensurate with the said percentage reduction in earning capacity. 6. However, as rightly pointed out by the counsel for the insurance company, the multiplier applicable is only 17, considering the fact that the appellant was 28 years old at the time of the accident, in view of the decision of the Supreme court in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)].** If the compensation for loss of earning capacity is calculated on that basis, the compensation would come to 2,04,000/- (2,000x12x17x15%) instead of₹ M.A.C.A. No.1781 of 2011 6 ₹ 77,760/- awarded by the tribunal. The difference would be 1,26,240/-. ₹ 7. The disabilities narrated above would very seriously affect his day to day personal life as well. Therefore, he is entitled to compensation for loss of amenities and enjoyment in life. We fix that amount as ₹ 70,000/-. The appellant was hospitalised for 130 days. He must have been unable to work for at least for 10 months. Therefore, we award compensation of 20,000/-₹ for loss of earnings for 10 months. The difference would be 8,000/-. Since the appellant had suffered very₹ serious injuries and had undergone surgical procedures and treatment, as an inpatient for 130 days, we are inclined to enhance the compensation for pain and suffering to 30,000/- from 20,000/-. The difference₹ ₹ would be 10,000/-. We are not inclined to enhance₹ compensation under the other heads, since we are of opinion that adequate compensation has been awarded under the other heads. Adding together, the appellant 7 M.A.C.A. No.1781 of 2011 would be entitled to additional compensation of ₹ 2,14,240/-, over and above what has been awarded by the tribunal. This amount would carry interest at the rate of 9% per annum from the date of the claim petition, till date of payment. The 3[rd] respondent insurance company is directed to deposit this amount also within two months. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss