Aparna (Appellant) v. T. Haridasan, K.V. Joseph and The Oriental Insurance Company Ltd., MACA No. 1098 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 31ST DAY OF OCTOBER 2013/9TH KARTHIKA, 1935** ## **MACA.No. 1098 of 2010 ( )** **-------------------------AGAINST THE AWARD IN OP(MV) NO. 605/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 24-02-2010** **------------------** ## **APPELLANT/PETITIONER :** **----------------------------------------** **APARNA, D/O. K.G.BASHEER, `USHUS', CHENNEERKARA, PATHANAMTHITTA.** **BY ADV. SRI.K.B.ARUNKUMAR** ## **RESPONDENTS/RESPONDENTS :** **------------------------------------------------** **1. T.HARIDASAN, S/O. GOPALAKRISHNAN NAIR, THUMIYATH VEEDU, MARUTHUR, PATTAMBI OTTAPPALAM TALUK, PALAKKAD DISTRICT- 679 303 (DRIVER OF BUS BEARING REGISTRATION NO.KL-08 AB/5431).** **2. K.V.JOSEPH, KOZHAKOT HOUSE, ATTATHARA, KUNDANNUR P.O., WADAKKANCHERRY THRISSUR DISTRICT - 679 307. (OWNER OF BUS BEARING REGISTRATION NO.KL-08 AB/5431).** **3. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, POST BOX NO.2, JYOTHY SUPER BAZAR THODUPUZHA - 685 584. (INSURER OF BUS BEARING REGISTRATION NO.KL-08 AB/5431).** **R3 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1098 of 2010 -----------------------------------------------------------------Dated this the 31[st] day of October, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimant in O.P.(M.V.).No.605/2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam is the appellant herein. The appellant filed th claim petition for compensation for the injuries and consequential disabilities suffered by her in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the vehicle by the first respondent and awarded a total compensation of 1,16,050/- on various heads as follows:₹ M.A.C.A. No.1098 of 2010 2 |**Sl. No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Loss of earning|18, 000| |2|Medical & miscellaneous expenses|54, 750| |3|Bystander expenses|2, 000| |4|Transportation expenses|1, 000| |5|Extra nourishment|2, 000| |6|Damage to clothing|1, 000| |7|Pain and suffering|8, 000| |8|Loss of earning capacity|15, 300| |9|Loss of amenities and convenience|4, 000| |10|Loss of dis-figuration|10, 000| ||Total|1, 16, 050| Dissatisfied with the quantum of compensation awarded, the appellant has preferred the appeal before this court, claiming enhancement. 2. Heard the counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that the appellant was a lady aged 22 years and working as a fashion designer in a private concern and getting ₹12,000/- per month. But the tribunal has taken her monthly income as 8,000/- for the purpose of assessing₹ compensation under the head loss of earning during the period of treatment, but reduced to 2,500/- for the₹ purpose of assessing compensation under the head loss of earning power, which is not correct. Further, the Medical M.A.C.A. No.1098 of 2010 3 Board had assessed 15% permanent disability, as her left ring finger has been partially amputated, but the tribunal has adopted only 3% for the purpose of assessing the loss of earning power, which is also not correct. The counsel for the appellant also submits that the multiplier applied is not correct and the correct multiplier is 18 and not 17. The amounts awarded under the head pain and suffering, loss of amenities in life and other heads are also on the lower side. According to the counsel for the appellant, the appellant is entitled to enhancement under all heads. 4. On the other hand, the counsel for the insurance company submitted that she has not lost her job and there is no evidence to show that her income has been reduced. So considering the nature of injuries sustained, the tribunal was perfectly justified in reducing the amount to 2,500/-, as notional income for the₹ purpose of assessing compensation under the head loss of earning power and the total compensation is in commensurate with the injury sustained and it is just and M.A.C.A. No.1098 of 2010 4 proper, and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. The fact that the appellant was working as a fashion designer in a private concern and her left ring finger was partially amputated is not in dispute. She had produced a document to show that she is getting an income of 12,000/- per month. But that includes several₹ other allowances given. So under the circumstances, the tribunal was perfectly justified in taking her income as ₹ 8,000/- per month and we are not inclined to interfere with the same. 7. The tribunal has awarded loss of earning for 2[1/4 ] month, taking her income as 8,000/- per month₹ that was supported by document namely Ext.A19, which will go to show that she was on loss of pay from 23.03.2002 to 1.6.2007. She had no case that she had lost her employment. But she had a case that she is not M.A.C.A. No.1098 of 2010 5 able to do the fashion designing work, on account of the disability and she has been put in another department. So, for the period for which she was on loss of pay, she is entitled to get compensation for the leave, as she is entitled to use that leave for some other purposes. So considering these aspects, the amount of ₹18,000/awarded by the tribunal under the head loss of earning is perfectly justifiable and she is not entitled to get any enhancement on that head. 8. The Medical Board has assessed her disability as 15%, as she has traumatic amputation of left ring finger through PIP joint. The tribunal has adopted the table provided under the Employees' Compensation Act for assessing the occupational disability and adopted percentage of disability as 3% for the purpose of assessing compensation under the head loss of earning capacity. It is settled law that the table provided under the Employees' Compensation Act is not applicable for assessing compensation under the head loss of earning M.A.C.A. No.1098 of 2010 6 capacity under Motor Vehicles Act. The disability will have to be correlated with her employment. Fashion designing has to be done with the aid of computer and loss of one finger will have its own impact on the work efficiency. Further, she gave evidence to the fact that she has been shifted from that post to some other section. So considering these aspects, the percentage of disability taken by the tribunal is on the lower side and we re-fix the same as 7% for the purpose of assessing compensation under the head loss of earning power. 9. The tribunal was also not justified in reducing the monthly income to a notional income of ₹ 2,500/- having taken her monthly income as 8,000/- for₹ the purpose of assessing loss of earning during the period of treatment. So we are taking 8,000/- as her monthly₹ income for that purpose. As per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** , the proper multiplier applicable to such age group is 18 and not 17. M.A.C.A. No.1098 of 2010 7 If a re-calculation is made on that basis, she will be entitled to get 1,20,960/- (8,000x12x18x7%), we award₹ the amount under that head. Since she has not lost her job on account of her disability, she is not entitled to get a huge amount under the head loss of amenities in life or for permanent disability in the same manner in which it was assessed under the head loss of earning capacity. But at the same time, considering the fact that she had lost her left ring finger and being a lady that may have some impact on her personal life as well and give some complex in the mind for facing others. We feel that the amount of 14,000/- awarded by the tribunal under the₹ head loss of amenities and loss of dis-figuration (4,000+10,000 respectively) is low and we enhance the same to 30,000/-. Considering the fact that the nature₹ of injuries sustained and the period of treatment under gone, the amount of 8,000/- awarded by the tribunal₹ under the head pain and suffering is also on the lower side and we enhance the same to ₹ 20,000/- from M.A.C.A. No.1098 of 2010 8 ₹8,000/-. The appellant is not entitled to get any enhancement under other heads, as it appears to be just and proper. So in all, the appellant will be entitled to get additional compensation of 1,48,960/-, over and above₹ what has been awarded by the tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest from the date of claim petition, till date of payment. Two months time is granted to the insurance company to deposit this amount as well. 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