Binoj v. Abdul Ali and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 MACA.No. 418 of 2007() ---------------------OPMV.51/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): APPELLANT/APPELLANT ---------------------------------- BINOJ, S/O. LATE GOPALAKRISHNAN, AGED ABOUT 27 YEARS, 'DEVIKA', VALAMBUR POST, MALAPPURAM DISTRICT. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): RESPONDENTS & ADDL. RESPONDENT ---------------------------------------------- 1. ABDUL ALI, S/O. AYAMU, CHEMBALANGADAN HOUSE, PUTHANANGADI (VIA), ANGADIPURAM, MALAPPURAM DISTRICT. (DRIVER OF KL-10/B 8749 BAJAJ AUTORICKSHAW). 2. IBRAHIM C., S/O. AYAMU, CHEMBALANGADAN HOUSE, CHELAKULAMBU, POST ANGADIPURAM. - (R.C. OWNER OF KL-10/B 8749, BAJAJ AUTORICKSHAW). 3. M/S. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, PEECHI COMPLEX, CALICUT ROAD, PERINTALMANNA POST. (INSURER OF KL-10/B 8749 BAJAJ AUTORICKSHAW). 4. MR. JAYADASAN, S/O. CHERIYAPPAN, POTTAYIL HOUSE, POST VALAMBUR, PATTIKKADU. ADV. SRI.A.A.MOHAMMED NAZIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No.418 of 2007 ------------------------------------------------Dated this the 11[th] day of August, 2011** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 9/12/2000. Against a total claim of `3,15,500/-. the Tribunal awarded only an amount of `69,600/- as per the details shown in paragraph-7 of the award which we extract below: |“Transport to hospital|:|Rs.|500.00| |---|---|---|---| |Extra nourishment and|||| |bystander's expenses|:|Rs.|1,700.00| |Damage to clothing|:|Rs.|250.00| |For review (7 times)|:|Rs.|700.00| |Pain and suffering|:|Rs.|13,000.00| |For future treatment|:|Rs.|3,000.00| **M.A.C.A. No.418 of 2007** -: 2 :- For disability (15000 x 3 x 18) : Rs. 8,100.00 100 Medical bills : Rs. 42,283.00 --------------------Total : Rs. 69,533.00 Rounded to : Rs. 69,600.00 =========” 2. The challenge is directed only against the quantum of compensation. We have heard the learned counsel for the appellant and the respondent/insurance company. We do not think it necessary to wait for service on any others. 3. Called upon to explain and be specific in the challenge, the learned counsel for the appellant submits that the quantum of compensation awarded is challenged on the following three grounds: - (i) The compensation awarded for pain and suffering is too low. - (ii) No amount has been awarded under the head of loss of amenities. - (iii) The monthly income taken into reckoning by the - Tribunal to ascertain the reduction in earning capacity is painfully low and unrealistic. 4. We have considered all the relevant inputs. The **M.A.C.A. No.418 of 2007** -: 3 :- appellant was a B.A. student at the time of the accident. He had suffered fracture shaft of right femur and fracture of right patella and fracture calcaneal tuberosity. He was an inpatient for 17 days. He continued treatment even thereafter. He had suffered permanent disability also as a result of the accident. For pain and suffering endured during the period of treatment, only an amount of `13,000/- has been awarded. We are satisfied that it would be absolutely reasonable to direct payment of a reasonable amount of `17,500/- as compensation for pain and suffering. 5. 3% disability was suffered by the appellant. This is proved satisfactorily by Ext.X1 disability certificate issued by the Medical Board. The Tribunal accepted the said disability completely. The compensation payable for reduction in earning capacity (though described only as disability) was calculated by the multiplier-multiplicand method. The learned counsel for the appellant argues that for a person like the appellant, a B.A. student, the Tribunal had erred grossly in reckoning only `15,000/- as the probable annual income. The learned counsel for the appellant submits that the Tribunal evidently appears to have drawn inspiration from Clause-6 of the 2[nd] Schedule to arrive at such a conclusion. That presumption of prudence is an enabling one and it cannot be lost sight that the said presumption **M.A.C.A. No.418 of 2007** -: 4 :- was enacted as early as in 1994. It has not been periodically updated. That is the income for a person who is not earning at all. So far as the appellant is concerned, it must have been realistically noted that the appellant is a B.A. student aged 22 years. The multiplier of 18 has been correctly accepted by the Tribunal. The Tribunal should have reckoned the monthly income also in a reasonable and realistic manner, contends counsel. We find merit in the said contention. We are satisfied that `3,000/per mensem can safely be reckoned as the monthly income. The decision in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) enables the courts to draw the presumption of prudence that even a non-earning woman home maker can be assumed to earn an income of `3,000/- per mensem. To that extent, the challenge raised on this ground succeeds. 6. Thirdly it is contended that though the appellant, a young person aged about 22 years, has admittedly suffered permanent disability to the tune of 3%, the Tribunal did not take into reckoning the reduction in the quality of enjoyment in life because of the reduction. The nature of injuries and the nature of disablement certified in Ext.X1 must certainly have been taken into consideration by the Tribunal to award an appropriate amount under the head of loss of amenities. Physical disability **M.A.C.A. No.418 of 2007** -: 5 :- suffered has two fold reflections on a person like the appellant. It reduces the earning capacity. It also reduces and impairs the quality of enjoyment in life of the victim. We are satisfied that an amount of `15,000/- can be awarded under the omitted head of loss of amenities. 7. We do further note that though there was no loss of earning as such during the period of treatment, it is very reasonable to assume that the educational prospects and programmes of the victim must have been impaired and rendered impossible for a period of 1 to 2 months after the accident. For that also he is entitled to be compensated. We are satisfied that an amount of `3,000/- can be awarded as compensation under that head. 8. The learned counsel for the insurance company alertly points out that an amount of `42,283/- has been awarded as medical expenses, though earlier in the body of paragraph-7 it is stated that bills produced are only for an amount of `27,139/-. The learned counsel for the appellant/claimant immediately points out that `27,139/- is the total expenses incurred as per one set of bills; whereas two sets of bills were produced and the total amount of `42,283/- was correctly awarded by the Tribunal. 9. The above discussions lead us to the conclusion that the **M.A.C.A. No.418 of 2007** -: 6 :- appellant is entitled to an amount of `33,840/- (Rupees thirty three thousand eight hundred and forty only) in addition to the amounts granted under the impugned award. |1.|Loss of opportunity to pursue||| |---|---|---|---| ||studies consequent to the||| ||accident for a period of 1 to 2||| ||months|-|` 3,000/-| |2.|Pain and suffering||| ||(`17,500/- minus `13,000/-)|-|` 4,500/-| |3.|Loss of amenities|-|`15,000/-| |4.|Reduction in earning capacity||| ||(3000 x 12 x 18 x 3/100 =||| ||`19,440/- minus `8,100/-)|-|`11,340/-| ||||-------------| ||Total|-|`33,840/-| ||||======| 10. Interest is seen awarded only at the rate of 6% per annum. The learned counsel for the appellant argues and we agree that interest must have been awarded at the rate of 7.5% per annum. ## 11. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `33,840/- (Rupees thirty three thousand eight hundred and forty only) in addition to the amount already awarded by the Tribunal. (c) We direct that the entire amount of compensation shall **M.A.C.A. No.418 of 2007** -: 7 :- carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. - (d) All other directions of the Tribunal are upheld. **Nan/** Sd/- **R. BASANT (Judge) Sd/M.C. HARI RANI (Judge) //true copy// P.S. to Judge**