Chellappan Pillai v. Raveendran Pillai and Ren Sunny Mathew and Oriental 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 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 MACA.No. 1414 of 2011 ----------------------OPMV.1700/2000 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT: PETITIONER ------------------------ CHELLAPPAN PILLAI, PUTHENTHARA PARAYIL, KRISHNAPURAM MURI, KRISHNAPURAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENTS: --------------- 1. RAVEENDRAN PILLAI, RAJESH BHAVANAM, KANNAMKARA PADINJARA PUTHEN VEEDU, PIN-690101. 2. REN SUNNY MATHEW, THEKKEDATHU HOUSE, PATHIYOORKALA, KEERIKKAD P.O., PIN-690508. 3. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., THIRUVALLA, PIN-669101. ADV. SRI.TITUS MANI FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED HE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 1414 OF 2011 ============================** ## **Dated this the 28[th] day of September 2011** ## **JUDGMENT** ## **R.Basant, J.** The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 20/9/1999. He had suffered multiple injuries including fracture of the shaft of right femur, and partial deafness in the right ear. He was an inpatient for a total period of 49 days from 20/9/1999 to 8/11/1999. He had to be on leave for a total period of seven months – from 21/9/1999 to 20/4/2000. He had allegedly suffered permanent disability as a result of the accident. He produced Ext.A9 certificate issued by the Orthopedic Surgeon of the Medical College Hospital which certified that he had suffered permanent disability to the tune of 22%. He was not referred to the Medical Bord. The Doctor who issued Ext.A9 was not examined. The Tribunal, on an anxious consideration of the relevant inputs, came to the conclusion that the appellant is entitled to a total amount of Rs.1,07,184/- as MACA 1414/2011 2 compensation as shown below against the claim staked which was limited to Rs.Two lakhs. 1) Loss of earnings :Rs.11,000/2) Medical expenses :NIL 3)Bystander expenses :Rs. 5,000/4)Transportation charges :Rs.1,000/5)Extra nourishment : Rs.1,000/6)Damage to clothing :Rs. 500/7)Pain and sufferings :Rs.15,000/8)compensation for permanent disability :Rs.68,684/(3669x12x13x12/100) 9)Loss of amenities & convenience etc. :Rs. 5,000/Total :Rs.1,07,184/========== 2. The Insurer was made entirely liable under the impugned award. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company. The challenge in this appeal is raised only against the quantum of compensation awarded by the Tribunal. MACA 1414/2011 3 3. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the Tribunal has not awarded any compensation for medical expenses. No documents have been produced. But evidence clearly shows that the appellant had suffered serious injuries and was obliged to continue treatment as an inpatient for a period of 49 days. He had to be on leave for a period of seven months after the accident. These inputs must have persuaded the Tribunal to award reasonable amount of compensation, even in the absence of production of any documents to prove the medical expenses, contends the learned counsel. The appellant is employed as a telephone mechanic in the Post & Telegraph Department. The possibility that the appellant had claimed reimbursement from his employer cannot be ruled out. There is no explanation as to why no bills were produced to prove for medical expenses. Even in the absence of any better evidence, even assuming that the appellant would have got reimbursement of some amount from his employer, we are satisfied that a lenient view can be taken and an amount of Rs.5,000/- can be awarded as compensation for medical expenses, that must inevitably have been incurred even after taking into account the possibility of reimbursement of MACA 1414/2011 4 certain expenses by his employer. 4. Learned counsel for the appellant then contends that quantum of compensation awarded under the heads of bystander expenses and extra nourishment are too low. Only an amount of Rs.6000/-(5000 plus 1000) has been awarded. The appellant was an inpatient for 49 days. We are of the opinion that an amount of Rs.100/- per day under each head can be awarded for the entire period of 49 days of hospitalisation. 5. Learned counsel for the appellant next contends that the Tribunal had not taken into account the monthly earnings correctly while ascertaining the loss of earnings. Leave certificate clearly suggests that he was obliged to be on leave for a period of seven months after the accident. We will assume that he had leave to his credit which he had availed in connection with the treatment. But even then for loss of leave to his credit, he is certainly entitled for compensation. His gross pay as per salary certificate is Rs.4866/-. The pay slip shows that Rs.1197/- was deducted from the gross pay towards GPF/ return of GPF advance etc. The Tribunal took only Rs.3669/-(4866 minus 1197) as the monthly earnings. This is obviously incorrect. The entire amount of Rs.4866/- must have been MACA 1414/2011 5 reckoned while computing the quantum of compensation payable for loss of leave. 6. Learned counsel for the Insurance company next contends that the Tribunal erred in reckoning only 12% as the extent of disability. Learned counsel for the appellant submits that medical certificate issued by a competent Doctor was produced. The appellant had appeared before the Tribunal and was present in life and blood for the Tribunal to assess the disability. The disability certificate clearly shows that there was 1.5 cms. shortening of the right femur due to malunion. There was limitation of flexion also. The appellant had difficulty in squatting, sitting cross legged, brisk walking etc. The Medical Officer under Ext.A9 disability certificate had assessed the disability to be 22%. The Tribunal did not send the appellant to any Medical Board. Nothing was noted by the Tribunal on physical verification which was against the contents of Ext.A9 disability certificate, though he was examined as PW1. We are satisfied, in these circumstances, that the Tribunal ought to have realistically assessed the extent of physical disability. We are satisfied in the facts and circumstances that 17% can safely be reckoned as the extent of physical disability. MACA 1414/2011 6 7. We now come to the compensation payable for such physical disability. Physical disability suffered by a person is likely to leave behind two fold reflections on his life. It would reduce the earning capacity. It would also impair and reduce the quality of enjoyment of life. The appellant is employed as a telephone mechanic under the Post & Telegraph Department. There is nothing to show that the physical disability has actually led to any reduction in earnings in the present employment. The appellant would be entitled to continue as an employee under the Post & Telegraph Department upto the age of 58 years. Till then the reduction in physical ability is not likely to have any reflection on his actual earnings. It is of course true that the appellant with reduced physical ability may have to strain harder to turn out the same amount of work which he would have turned out, but for the physical disability. That circumstance notwithstanding, the fact remains that he has not suffered any actual reduction in earnings. 8. Of course, for the post retiral engagements which the appellant as a mechanic can aspire after his retirement age of 58 years, there would certainly be reductions in earnings. Reduction in earning capacity will have a reflection only at that MACA 1414/2011 7 stage of life of the appellant. It is reasonable to assume that the appellant would earn an income of Rs.3500/- per mensem after his retirement. 17% physical disability can safely be assumed to result in identical reduction in earning capacity. 9 is the multiplier suggested in **Sarla Verma v. D.T.C.[(2009)6 S.C.C.121]** for persons belonging to the age group of 56-60 years. The appellant would consequently be entitled only to a lesser amount of compensation under the head of reduction in earning capacity. 9. Learned counsel for the appellant next contends that the compensation awarded under the head of loss of amenities and convenience (Rs.5000/-) is totally inadequate. The Tribunal had accepted 12% to be the disability. The appellant is a person aged 49 years. He will have to live with the disability for the rest of his life. The disability would necessarily precipitate inconvenience, discomfiture and impairment and reduction in the quality of enjoyment of life. It would also result in shortened expectation of life. For all these dimensions of the physical disability suffered, we are satisfied that a higher amount of compensation deserves to be awarded under the head of loss of amenities. MACA 1414/2011 8 ## 10. The above discussions lead us to the conclusion that the appellant is entitled to a total amount of Rs. 1,59,622/- as compensation as per the details shown below: |**_sl.No._**|**_Heard_**|**_Amount_**|| |---|---|---|---| |1|Loss of earnings|Rs. 34,062/-|4866 x7 (7 months leave lost<br>– only Rs.11,000/- awarded<br>by the Tribunal| |2|Medical expenses|Rs. 5,000/-|No amount awarded by the<br>Tribunal| |3|Bystander expenses & Extra<br>nourishment|Rs. 9,800/-|49 days x 200 – only<br>Rs.6,000/- awarded by the<br>Tribunal| |4|Transportation charges|Rs.1,000/-|As awarded by the Tribunal| |5|Damage to clothing etc.|Rs. 500/-|As awarded by the Tribunal| |6|Pain and suffering|Rs.20,000/-|( Only Rs.15,000/- awarded<br>by the Tribunal)| |7|Compensation for reduction in<br>earning capacity|Rs.64,260/-|3500x12x9x17/100<br>(Rs.68,684/- awarded by the<br>Tribunal)| |8|Loss of amenities and<br>convenience|Rs.25,000/-|Only Rs.5000/- award ed by<br>the Tribunal| ||Total|Rs.1,59,622/<br>-========|| 11. We are not satisfied that the amount awarded under any other head deserves or warrants interference. 12. In the result, MACA 1414/2011 9 a) this appeal is allowed in part. b) In supersession of the impugned award, the appellant is found entitled to a total amount of Rs.1,59,622/- (Rupees one lakh fifty nine thousand six hundred and twenty two only). c)We make it clear that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of realisation. d)The appellant would be entitled to proportionate cost before the Tribunal as held in **Jeena v. Satheesh Babu [20011(3)K.L.T. 943].** e)All other directions of the Tribunal are upheld. Sd/- **R.BASANT, JUDGE** **Sd/M.C. HARI RANI,JUDGE** ks. true copy P.s.To Judge MACA 1414/2011 10