Francis @ Shaji Francis v Hussainkoya, Rasheed V. & The National 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 MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MACA.No. 1531 of 2011() ----------------------- O.P.(MV) NO.1529/2007 ON THE FILE OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE. APPELLANT(S): PETITIONER ------------------------ FRANCIS @ SHAJI FRANCIS, AGED 38 YEARS, RESIDING AT MANIYILA HOUSE, P.O.PAYYAMPALLI, MANDATODY, WAYANAD. BY ADV. SRI.V.S.CHANDRASEKHARAN RESPONDENT(S): --------------- 1. HUSSAINKOYA, AGE NOT KNOWN, S/O.ABDULLA, RESIDING AT 16/226, P.P.HOUSE, MALIYAM VEED PARAMBU, PARAPPIL POST FRANCIS ROAD, KOZHIKODE DISTRICT-673 010. 2. RASHEED.V., AGE NOT KNOWN, S/O. SAIDALI, VELETHEDATH HOUSE, ODUMBRA ROAD, THIRUVANNUR POST, KOZHIKODE DISTRICT-673 008. 3. THE NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE DISTRICT-673 006. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: # **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No.1531 of 2011 ------------------------------------------------Dated this the 17[th] day of October, 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 23/4/2007. He was an inpatient from 23/4/2007 to 4/5/2007 at the Medical College Hospital, Kozhikode. He was again admitted from 15/6/2007 to 16/6/2007. He has suffered permanent disability which was assessed at 18% by the Medical Board under Ext.C1. The Tribunal accepted the same. Against a total claim of `3,00,000/-, the Tribunal awarded a total amount of `1,25,114/- as per the details given in paragraph-8 of the impugned award which we extract below: |**Sl. No.**|**Name of head**|**Amount awarded**| |---|---|---| |1|Loss of earnings|Rs.9,000/- (3000 x 3 months)| |2|Transport of hospital|Rs.1,000/-| |3|Extra nourishment|Rs.750/-| |4|Damage to clothings and other articles|Rs.500/-| |5|Treatment expenses|Rs,6,464/- (as per Ext.A10 series| |6|Bystander's expenses|Rs.200/- (100 x 2 days)| ## **M.A.C.A. No.1531 of 2011** -: 2 :- |**Sl. No.**|**Name of head**|**Amount awarded**| |---|---|---| |7|Pain and suffering|Rs.10,000/-| |8|Permanent disability|Rs.97,200/- (3000 x 12 x 15 x<br>18/100)| |Total||Rs.**1,25,114/-**| ## 2. The learned counsel for the appellant and the learned counsel for the insurance company have advanced their arguments. The insurer is made entirely liable. The challenge is only against the quantum of compensation awarded. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the Tribunal erred grossly in reckoning only `3,000/- as the monthly income of the appellant. The appellant was employed as a Salesman. He was getting an income of `7,000/- per mensem, it is contended. In the absence of any evidence, the Tribunal accepted `3,000/- as the monthly income of the appellant. The learned counsel prays and we agree that `3,500/- can be reckoned as the monthly income as on the date of the accident i.e., 23/4/2007. Both, while computing compensation for loss of earning as also while computing compensation for reduction in earning capacity, we are satisfied that `3,500/- can be reckoned as the monthly income of the appellant. Even in the absence of any better evidence, we make this assumption and we feel that we are perfectly justified in ## **M.A.C.A. No.1531 of 2011** -: 3 :- making that assumption in view of Clause (6) of the Second Schedule to the Motor Vehicles Act as also the dictum in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi v. Mohammad Tabbar** (2008 ACJ 1488). 3. It is contended that the Tribunal grossly erred in not reckoning the entire period of hospitalization. The appellant was in the hospital in two spells, for a total period of 14 days. The Tribunal unfortunately reckoned that the period of inpatient treatment was only for 2 days. We find the argument is absolutely justified. As stated earlier, he was in the hospital from 23/4/2007 to 4/5/2007 and later for a further period of 2 days. The Tribunal has taken into consideration only the later period. For such period of hospitalization the appellant is certainly entitled for enhanced compensation under the heads of extra-nourishment, bystander's expenses, treatment expenses as also pain and suffering. We are satisfied that a further amount of `5,000/- can be awarded as compensation taking into account the omission on the part of the Tribunal to take the initial period of hospitalization into consideration. 4. Finally, it is contended that no amount of compensation has been awarded under the head of loss of amenities. The appellant is a young man aged 38 years. He has suffered 18% ## **M.A.C.A. No.1531 of 2011** -: 4 :- disability as a result of the accident. The physical disability suffered by a person leaves behind two fold reflections in his life. It reduces his earning capacity. It also impairs and reduces the quality of enjoyment of life for the entire remaining period of life. The Tribunal has unfortunately omitted to award any amount as compensation under the head of loss of amenities. We are satisfied that appropriate amount of compensation deserves to be awarded under this head also to the appellant. 5. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `42,700/- (Rupees forty two thousand and seven hundred only) as compensation as shown below in addition to the amount already awarded by the Tribunal under the impugned award: |1.|Loss of earnings||| |---|---|---|---| ||(`3,500/- x 3 = `10,500/-||| ||minus `9,000/-)|-|`1,500/-| |2.|Extra amount of||| ||compensation due under||| ||various heads when the||| ||omitted period of||| ||hospitalization (23/4/07 to||| ||4/5/2007) is taken into||| ||consideration.|-|`5,000/-| |3.|Reduction in earning||| ||capacity i.e.,||| ||`3,500/- x 12 x 15 x 18/100||| ||i.e., `1,13,400/- minus||| ||`97,200/-|-|`16,200/-| ## **M.A.C.A. No.1531 of 2011** -: 5 :- 4. Loss of amenities (no amount awarded by the Tribunal) - `20,000/-------------Total `42,700/====== We are not persuaded to agree that the amount awarded under any other head deserves modification/enhancement. 6. The learned counsel for the appellant contends that proportionate costs has not been awarded as compensation as stipulated in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). Only an amount of `1,000/- has been awarded as costs. We are satisfied that the appellant is entitled to proportionate cost as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). 7. **In the result:** (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `42,700/- (Rupees forty two thousand and seven hundred only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as ordered by the Tribunal in the impugned award. (d) The appellant is found entitled to proportionate cost before the Tribunal for the entire amount awarded as per the ## **M.A.C.A. No.1531 of 2011** -: 6 :- dictum in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). - (e) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge) Sd/M.C. HARI RANI (Judge)** ## **Nan/** **//true copy// P.S. to Judge** ## **M.A.C.A. No.1531 of 2011** -: 7 :- **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------C.M.Appl. No.2346 of 2011 in M.A.C.A. No. 1531 of 2011 ------------------------------------------------Dated this the 17[th] day of October, 2011** ## **ORDER** This petition is to condone the delay of 91 days in filing the M.A.C.A. We have heard the learned counsel for the appellant and the learned counsel for the insurance company which has been made entirely liable under the impugned award to satisfy the award. We take a lenient view. Petition allowed. Delay condoned. **R. BASANT (Judge)** **M.C. HARI RANI (Judge)** **Nan/**