Binuraj K.V. v. Chacko Ouseph 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 FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 MACA.No. 514 of 2004() ---------------------OPMV.1703/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ----------------------------------- BINURAJ K.V., S/O. VISWANATHAN, KURUMATHAYIL, THALAYOLAPARAMBU P.O., VADAYAR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: - --------------- 1. CHACKO OUSEPH, S/O. OUSEPH PULIMMOOTTIL HOUSE, THRIKODITHANAM P.O., CHANGANACHERRY. 2. SUDHEER, S/O. ASSOR SUDHEER, MANAZILIL HOUSE, THALAYOLAPARAMBU P.O. 3. THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY THE DIVISIONAL MANAGER KOTTAYAM. 4. PAUL ALEX, S/O. JOSEPH ALEXANDER, PARASSERIL JOSE, VADAYAR P.O., VAIKOM. 5. VISWANATHAN, S/O. KUNJACHAN - I.M.I.OFFICE, VALLAKOM. 6. THE NEW INDIA ASSURANCE CO.LTD., REP.BY THE DIVISIONAL MANAGER, KOTTAYAM. ADV. SRI.VPK.PANICKER FOR R3 SRI.S.MAMMU FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.514 of 2004 ---------------------------------------Dated this the 12[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 21/1/1995. He was a student at the relevant time attending his graduation course. He set up a plea that he was earning an income by part time employment to the tune of Rs.3,200/- per month. He had suffered injuries obliging him to continue as an in-patient for a period 13 days. He has suffered fracture of the nasal bone and maxilla. He had lost two teeth. It was his case that he has suffered physical disability. He produced a certificate which shows that the disability was to the extent of 16%. The tribunal, against a claim of Rs.3,00,000/-, proceeded to award an amount of Rs.62,050/- as compensation as per the details given below: Rs. Treatment expenses 1,500/By-stander expenses 750/- 2 M.A.C.A.No.514 of 2004 |Transportation expenses|500/-| |---|---| |Extra nourishment|500/-| |pain and suffering|15,000/-| |permanent disability|28,800/-| |(Rs.12,000/- x 16 x 15/100)|| |loss of marriage prospects|10,000/-| |Loss of earning power|5,000/-| ||---------------| |**Total**|**62,050/-**| ||======| 2. We have heard the learned counsel for the appellant/claimant and the 3[rd] respondent/insurance company. While the learned counsel for the appellant contends that the quantum of compensation awarded is grossly inadequate, the learned counsel for the 3[rd] respondent/Insurance Company submits that amounts have been awarded without any rhyme or reason and that, at any rate, the total amount of compensation awarded does not warrant interference. The amount of Rs.62,050/- awarded by the tribunal represents fair, just and reasonable compensation, contends the learned counsel for the 3[rd] respondent/Insurance Company. 3 M.A.C.A.No.514 of 2004 3. The learned counsel for the 3[rd] respondent/Insurance Company points out that an amount of Rs.28,800/- has been awarded under the head of permanent disability. This is done by employing the multiplier-multiplicand method. It can safely be assumed that by adopting the multiplier-multiplicand method, the tribunal had attempted to ascertain the reduction in earning capacity. Further, after awarding Rs.28,800/- under the head of permanent disability by adopting the multiplier-multiplicand method, a further amount of Rs.5,000/- has been awarded under the head of loss of earning power. This is incongruent and irrational, contends the learned counsel for the 3[rd] respondent/insurance company. 4. The learned counsel for the appellant, on the contrary, contends that no amount at all has been awarded under the head of loss of earnings. The multiple fracture suffered must have definitely interrupted the ability of the appellant to pursue his normal chores. He would not have been able to attend his classes as a student. He was not able to pursue his part time employment. The amount awarded under the head of loss of earning power though described as such, 4 M.A.C.A.No.514 of 2004 must be reckoned as compensation payable for such loss of earnings/interruption in his educational progress. An amount of Rs.28,800/-, though inadequate, must be reckoned as the amount payable under the head of reduction in earning capacity. The amount awarded under the head of loss of marriage prospects must be reckoned as compensation payable for loss of amenities, contends the counsel. 5. Notwithstanding the apparent unreasonableness in the heads described by the tribunal, we are satisfied that such a view canvassed by the appellant can be adopted. The only question now is whether the amounts awarded under any heads require further modification/enhancement. 6. The learned counsel for the appellant submits that the amount of compensation awarded under the head of treatment expenses is inadequate. He was an in-patient for 13 days. He continued treatment even after discharge from the hospital. Only an amount of Rs.1,500/- has been awarded. For 13 days stay in the hospital as an in-patient, only Rs.750/- has been awarded under the head of bystander expenses. This is inadequate, contends counsel. For extra nourishment also only 5 M.A.C.A.No.514 of 2004 an amount of Rs.500/- has been awarded. This is inadequate, points out the counsel. Under the head of permanent disability which we understand as compensation paid for reduction in earning capacity, Rs.12,000/- has been reckoned as the annual income though the tribunal itself had observed that Rs.15,000/is the annual income. The counsel further points out that the tribunal has erred in accepting 15 as the multiplier when **Sarla Verma v. D.T.C [(2009)6 SCC 121]** prescribes 18 as the multiplier applicable to the person like the appellant aged between 20 and 25 years. The learned counsel for the 3[rd] respondent/insurance company, on the contrary, contends that 16% reckoned as the reduction in earning capacity is totally irrational considering the nature of injuries suffered. Such injuries could not, at any rate, have resulted in reduction in earning capacity to the extent of 16%, points out counsel. We find merit in that contention. No amounts have been awarded under the head of loss of amenities. Since disabilities have certainly been suffered by the appellant, an award of only an amount of Rs.10,000/- under the head of marriage prospects and not awarding any other amount under the head of loss of 6 M.A.C.A.No.514 of 2004 amenities is incorrect, contends counsel. We find that objection to be well taken. 7. Monthly income has been reckoned by the tribunal at Rs.1,200/- though while calculating the reduction in earning capacity it was reckoned only at Rs.1,000/- per month. We take note of the presumption of prudence under clause 6 of the second schedule which permits courts to assume that Rs.1,250/can be the monthly income of a non-earning person from 1994 even in the absence of any better evidence. We also take note of the presumption in **Latha Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** that even a non-earning home maker/house wife can be assumed to earn an income of Rs.3,000/- per month. We hence reckon Rs.3,000/- as the prospective monthly income of the appellant while considering reduction in earning capacity. 8. Having considered all the relevant circumstances, we are satisfied that we must resort to fresh computation of compensation. 9. We are satisfied that the appellant can be held to be entitled for the following amount as compensation. 7 M.A.C.A.No.514 of 2004 |i).|Pain and suffering|Rs.10,000/-| |---|---|---| ||(Fracture of nasal bone and maxilla|| ||- in-patient for 13 days)|| |ii).|Treatment expenses|Rs.2,500/-| ||(bills produced for Rs.750/-|| ||in-patient for 13 days)|| |iii).|Transportation expenses|Rs.500/-| |iv)|Extra nourishment|Rs.2,000/-| |v)|Reduction in earning capacity|Rs.51,840/-| ||(Rs.3,000/- x 12 x 8/100 x 18)|| ||(Monthly income assumed to be|| ||Rs.3,000/-.Reduction in earning|| ||capacity accepted only at 8%.|| ||Multiplier reckoned at 18)|| |vi)|Loss of amenities|Rs.20,000/-| ||(including cosmetic damage,|| ||loss of two teeth, shortened|| ||life expectancy etc.)|| |vii)|Loss of earnings and interruption in|Rs.5,000/-| ||in education curriculum.|| |||------------------| ||**Total**|**Rs.91,840**| |||========| 10. In the result, - a) This appeal is allowed in part. - b) Appellant is found entitled to a total amount of Rs.91840/- (Rupees ninety one thousand eight hundred and forty only) as compensation. 8 M.A.C.A.No.514 of 2004 c) We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the petition to the date of deposit/realisation. d) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.514 of 2004 9 10 M.A.C.A.No.514 of 2004 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010