Augustine @ Joy v. Sajee V. Joseph, Sreekumar & The New India 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 WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 MACA.No. 651 of 2004() ---------------------OPMV.1334/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- AUGUSTINE @ JOY, AGED 35 YEARS, S/O.MARTHYAS, PEEDIYAKALAM VEETTIL, WARD NO.X. AROOR PANCHAYATH. BY ADV. SRI.BEPIN VIJAYAN RESPONDENT(S): RESPONDENTS. --------------------------- 1. SAJEE V.JOSEPH, VENNAKAL VEEDU, MADAPPUZHA, CHALAKUDI P.O. 2. SREEKUMAR, S/O.GANGADHARAN, CHANNAM VEEDU, WARD NO.1., KUMBALAM PANCHAYATH, COCHIN. 3. THE NEW INDIA INSURANNCE CO.LTD., MOOVATTUPUZHA BRANCH. ADV. SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A No.651 of 2004 ---------------------------------------Dated this the 13[th] day of January 2010 ## **J U D G M E N T** ## **Basant,J** Insurer/claimant is the appellant. He had suffered injuries in a motor accident that took place on 25/11/1995. He was aged 28 years on the date of the accident. He claims to be a marble worker earning an income of Rs.125/- per day. He had suffered multiple injuries including fracture of both bones of the right leg middle 1/3[rd] . That was a displaced grade one compound fracture. He was an in-patient from 25/11/1995 to 08/12/1995. His treatment continued. He allegedly had suffered permanent disability. The extent of permanent disability was assessed by PW2 doctor in Ext.A5 disability certificate to be 12%. The claimant examined himself as also PW2 doctor and PW3, his employer in support of his case. 2. The tribunal, on an anxious consideration of all the relevant inputs proceeded to pass the impugned award directing payment of an amount of Rs.45,000/- along with interest @ 6% p.a as per the details shown below: 2 M.A.C.A No.651/04 Loss of earnings (6 months x Rs.2,000/-) = Rs.12,000/Medical and miscellaneous expenses = Rs.10,000/Pain and suffering = Rs.7,000/Partial disability, loss of amenities, = Rs.16,000/loss of earning power etc. **Total = Rs.45,000/-** 3. Called upon to explain the nature of challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on the ground that the compensation payable consequent to partial disability has not been correctly computed by the court below. He has a further contention that monthly earnings reckoned at Rs.2,000/- by the tribunal is also grossly inadequate. In these circumstances, it is prayed that the amount awarded may be modified and enhanced. 4. We find merit in the contention of the learned counsel for the appellant. The nature of the injury is seen by us first of all. In addition to other external injuries, the appellant had suffered fracture of both bones of the right leg middle 1/3[rd] . It was a displaced fracture and was reckoned as a grade one compound fracture by the doctor. He is a marble worker, a M.A.C.A No.651/04 3 manual labourer. Physical faculties are crucial in the employment which he pursues. Ext.A5 disability certificate was perused by us in total. Our attention has also been drawn to the evidence of PW2, the doctor who issued Ext.A5. 12% disability has been certified in Ext.A5. The oral evidence of PW2 suggests the advisability of reducing the percentage of disability by three if the disability of future improvement is taken into consideration. But, according to PW2, it is after reducing such extent of 3%, that Ext.A5 certifies the disability to be 12%. That fact is not stated in Ext.A5 and was stated only when confronted during cross-examination of the possibility of improvement by physiotherapy. 5. The tribunal did not consider the quantum of compensation payable consequent to disability on the basis of the multiplier-multiplicand method. We agree with the learned counsel for the appellant that the course adopted by the tribunal is not justified. Considering the nature of the injury suffered, its probable consequences, the nature of employment of the appellant, we are satisfied that it can safely be concluded that atleast 9% reduction in earning capacity must have resulted M.A.C.A No.651/04 4 consequent to the disability certified in Ext.A5. That, we are satisfied, can safely be reckoned as the extent of reduction in earning capacity consequent to the disability suffered. 18 can safely be reckoned as the multiplier applicable. Second schedule can safely be reckoned as a guide for persons aged 25-30 years. 2[nd] schedule employs the multiplier of 18 for permanent disability. In addition to this, the appellant is also entitled for compensation for loss of amenities of life. The tribunal has awarded a composite amount of Rs.16,000/- only. The challenge raised deserves to be upheld. 6. Though there is a grievance raised that the monthly income should have been reckoned at a higher amount, we note that the accident took place in 25/11/1995. By the 2[nd] schedule introduced with effect from 14/11/1994, even in the absence of any evidence, for a non-earning person also Rs.1,250/- can be accepted as the multiplier. We are satisfied that the tribunal committed no error in reckoning Rs.2,000/- as the monthly income. 7. On the basis of the above discussions, we come to the conclusion that the appellant is entitled to the following further M.A.C.A No.651/04 5 amounts. He is entitled to an amount of Rs.32,880/- in addition to the amounts awarded by the tribunal. Reduction in earning capacity (Rs.2,000/- x 12 x 18 x 9/100) = Rs.38,880/- Loss of amenities (impairment in the quality of life consequent = Rs.10,000/to the physical disability) **Total = Rs.48,880/-** Deducting Rs.16,000/- already awarded, balance Rs.32,880/-. 8. We accept the contention of the learned counsel for the appellant that award of interest @ 6% p.a is painfully low. Relying on the decision in **Dharampal v. U.P State Road Transport Corporation [2008(2)KLT 691 (SC )]** we hold that the appellant is entitled to interest atleast @ 7.5% p.a. The challenge succeeds on that ground also. 9. In the result, - a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.32,880/- (Rupees thirty two thousand eight hundred and eighty only) in addition to the amount of Rs.45,000/- already awarded. M.A.C.A No.651/04 6 c) It is further directed that the entire amount of compensation shall bear interest @ 7.5% p.a from the date of the petition to the date of payment. d) All other directions in the impugned award are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A No.651/04 7 M.A.C.A No.651/04 8 **R.BASANT & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 29/07/2009