Arun Kumar s/o Yesodharan v. Abdul Manaf and The Manager, Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934** ## **MACA.No. 2767 of 2009 ( )** **------------------------AGAINST THE ORDER IN OPMV.1861/2003 DATED 28-02-2009** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **ARUN KUMAR S/O. YESODHARAN, SARASWATHY BHAVAN PUNNAKULAM SOUTH KULASEKHARAPURAM.P.O. KARUNAGAPPALLY KOLLAM.** ## **BY ADV. SRI.C.RAJENDRAN** **RESPONDENT(S):** **--------------** **1. ABDUL MANAF, S/O. ABDUL MAJEED, AAM MANZIL PADA NORTH KARUNAGAPPALLY KOLLAM.** **2. THE MANAGER, ORIENTAL INSURANCE COMPANY LTD. KOLLAM.** **R2 BY ADV. SRI.VPK.PANICKER R1 BY ADV. SRI.S.RAJEEV** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.SIRI JAGAN & K.HARILAL, JJ. ================== M.A.C.A.No. 2767 of 2009 ================== Dated this the 10[th] day of January, 2013 J U D G M E N T ## Siri Jagan, J. The appellant is the claimant in O.P(M.V.).No. 1861/2003 before the Motor Accidents Claims Tribunal, Kollam. He was involved in an accident caused by the negligent driving of a driver of the vehicle owned by the 1[st] respondent, which is insured with the 2[nd] respondent insurance company. The appellant was aged 29 years at the time of accident. He claims to have been working as an Electrician in Saudi Arabia. He claimed that he was earning ` 18,000/- per month as an Electrician in Saudi Arabia, in proof of which claim, he produced Ext.A15(a) salary certificate. He suffered fracture to his knee, for which, surgery was done with implanting, which was later removed. Based on these inputs, the Tribunal awarded compensation on various heads as follows: |s heads as follows:|s heads as follows:|s heads as follows:|s heads as follows:| |---|---|---|---| |PART - I|||| |(a)|Loss of earning for six months(5000 x<br>6)|`|30,000.00| |(b)|Partial loss of earning||Nil| |(c)|Transport to hospital|`|1,000.00| |(d)|Extra nourishment|`|1,000.00| |(e)|Damage to clothing and articles|`|500.00| |(f)|Others - bystander expenses|`|1,000.00| |(g)|Medical Expenses|`|43,282.00| m.a.c.a.2767/09 - : 2 :- |PART -II|PART -II||| |---|---|---|---| |(h)|Compensation for pain and suffering|`|15,000.00| |(i)|Compensation for continuing for<br>permanent disability<br>(`3000 x 12 x 18 x 10/1000)|`|64,800.00| |(j)|Compensation for the loss of amenities<br>in life||Nil| |Total||`|1,56,582/-<br>rounded as<br>` 1,56,600/-| But, on the ground that the driver of the vehicle did not have a valid licence to drive the vehicle in question, the insurance company was exonerated from liability and the 1[st] respondent owner was directed to pay the compensation amount. The appellant is challenging the adequacy of the quantum fixed by the Tribunal as compensation. 2. According to the learned counsel for the appellant, there was no reason for the Tribunal to reduce the income of the appellant from ` 18,000/- to ` 5,000/- per month. It is submitted that the compensation for permanent disability ought to have been calculated on the basis of his monthly income as ` 18,000/per month, which has not been done by the Tribunal. It is also submitted that the compensation for pain and suffering awarded m.a.c.a.2767/09 - : 3 :- is too low. The further contention raised by the appellant is that no compensation has been awarded for loss of amenities. 3. The learned counsel for the 1[st] respondent would contend that the amount already awarded itself is exorbitant and not commensurate with the injuries and alleged disability sustained by the appellant. It is submitted that the income taken is very high also. Further, according to the learned counsel for the 1[st] respondent, as per a Full Bench decision of this Court in **Oriental Insurance Co. Ltd. v. Hariprasad & Others** , AIR 2006 Kerala 125, compensation cannot be awarded separately on account of permanent disability and also on account of loss of earning capacity. 4. We have considered the rival contentions in detail. 5. At the outset, we note that the Tribunal has made a very serious mistake in the judgment. The Tribunal has fixed the monthly income of the appellant as ` 5,000/- in paragraph 8 of the award. Based on that, the loss of earnings for six months was also computed as ` 30,000/- at the rate of ` 5,000/- per month. But, while assessing compensation for permanent disability, the monthly income taken is only ` 3,000/-. Therefore, the m.a.c.a.2767/09 - : 4 :- compensation for disability should also have been computed on the monthly income of the appellant fixed by the Tribunal at ` 5,000/-. 6. As far as the claim of the appellant for fixation of monthly income as ` 18,000/- is concerned, we do not agree with the counsel for the appellant. Ext.A15(a) is a salary certificate issued by some private party in Saudi Arabia. Apart from the interested testimony of the appellant, there is no proof of the genuineness of the said salary certificate. It is also a known fact that the cost of living in Saudi Arabia and in Kerala are totally different. If the income in Saudi Arabia is ` 18,000/- per month, correspondingly the appellant will have to shell out money for expenses for earning that income also proportionately. As such, we do not find any fault in the Tribunal fixing the monthly income of the appellant as ` 5000/-. 7. The appellant would contend that by Ext.A20 disability certificate, the District Medical Board had certified 15% disability for the appellant, which has been arbitrarily reduced to 10% by the Tribunal. On the other hand, the learned counsel for the 1[st] respondent would contend that even 10% is m.a.c.a.2767/09 - : 5 :- exorbitant. According to him, the 15% assessed is before the implant is removed and there is no disability certificate certifying the disability after the implant is removed. We are of opinion that insofar as the doctor has not been examined to prove Ext.A20, the Tribunal could not have accepted the full 15% disability as certified in Ext.A20. We also do not find any merit in the contention of the 1[st] respondent that the 10% taken is exorbitant. In view of the injuries sustained and the surgery undergone by the appellant, we are satisfied that the Tribunal was right in fixing the disability as 10%. 8. But we are of opinion that the compensation for permanent disability has to be recomputed taking the accepted monthly income of ` 5000/- as the basis instead of of ` 3000/- as done by the Tribunal. Recalculated thus, the compensation payable to the appellant for permanent disability would be ` 1,08,000/-( ` 5000 x 12 x 18 x 10/100). After deducting the amount of ` 64,800/- awarded by the Tribunal under this head, the appellant would be entitled to additional compensation of ` 43,200/-. 9. Regarding the contention of the 1[st] respondent that no m.a.c.a.2767/09 - : 6 :- compensation could have been awarded both for permanent disability and loss of earning capacity together, we find that the Tribunal has granted compensation only for permanent disability and no compensation for loss of earning power was separately awarded. Even apart from that, the Supreme Court has in **K.Suresh v. New India Assurance Company Ltd** ., CDJ 2012 SC 740, held that compensation is payable both for physical disability as well as loss of earning power consequent to the physical disability. From the permanent disability as a result of the injuries suffered by a victim of a motor accident two consequences visit the victim. The first is that he will not be able to perform the duties of his job as competently as before the accident. Resultantly his capacity to earn his livelihood would also diminish. A victim would be entitled to compensation for such loss of earning power on account of the disability. Apart from the same, he would also be unable to perform his day to day activities which every human being has to do apart from his avocation to earn a livelihood. When his capacity to do the same is impaired, he is entitled to compensation for the same also separately apart from the m.a.c.a.2767/09 - : 7 :- compensation for loss of earning capacity. But there cannot be separate compensation for permanent disability and loss of amenities in life. Compensation for loss of amenities takes in compensation for permanent disability as well. There is a tendency to view the two separately and to award compensation for both which is not sustainable. On account of permanent disability caused by the injuries in the accident compensation can be awarded only under two heads, namely (1) loss of earning capacity and (2) physical disability/loss of amenities in life. Therefore, compensation can be awarded firstly either for physical disability or for loss of amenities in life and secondly for loss of earning power and not under three separate heads. 10. In this case, we find that the Tribunal has not awarded any amount under two heads, but only for physical disability. Although compensation for physical disability has been given, since it is linked to monthly income, the same is actually compensation for loss of earning power. The appellant has suffered a fracture of the knee and he had to undergo a surgery with implant. So naturally, the appellant would find it very difficult to do his daily routine, where squatting is necessary. As m.a.c.a.2767/09 - : 8 :- such, we are inclined to grant compensation for loss of amenities as well. We fix ` 10,000/- under this head as compensation payable to the appellant. Together, the appellant would be entitled to an additional compensation of ` 53,200/-. This amount would carry interest at the rate of 9% per annum from the date of the claim petition till payment. Since the 2[nd] respondent insurance company has been absolved from the liability, the amount shall be paid by the 1[st] respondent. The M.A.C.A. is disposed of as above. Sd/S.SIRI JAGAN, JUDGE Sd/sdk+ K.HARILAL, JUDGE ///True copy/// P.A. to Judge