Gokulan v. Sunilkumar and Rejith Kumar and The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **&** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933** **MACA.No. 1386 of 2011()** **----------------------OPMV.2021/2007 of PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** **....................** ## **APPELLANT(S)/PETITIONER :-** **--------------------------------------------** **GOKULAN, AGED 36 YEARS, S/O.VASU, POOVATHINKATTIL VEEDU, MANNUR POST, KOZHIKODE.** **BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENT(S)/RESPONDENTS :-** **-------------------------------------------------** **1. SUNILKUMAR,S/O.RAMANKUTTY,SREERAM NIVAS, HOUSE NO.7/151-A,KADALUR POST,KOYILANDY TALUK, KOZHIKODE - 673 531.** **2. REJITH KUMAR,S/O.CHANDU, VADAKKE ARAPOYIL HOUSE,VENGERI, KANNADIKKAL,KOZHIKODE.** **3. THE NEW INDIA ASSURANCE CO.LTD, SILVER PLAZA BUILDING,MAVOOR ROAD, KOZHIKODE.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED FOLLOWING:** **jvt** ## **R. BASANT & N.K.BALAKRISHNAN, JJ. -----------------------------------M.A.C.A. No.1386 of 2011 ----------------------------------Dated this the 5[th ] day of September 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 25.7.2007. He claimed a total amount of `3,50,000/- as compensation. He had suffered multiple fracture including fracture acetabular roof on left side, comminuted fracture anterior column of right acetabulum, fracture ribs involving 10[th] , 11[th] and 12[th] rib on right side, fracture spinous process of T6, T7 & T8 vertebrae and fracture transverse process of L1 to L5 vertebrae on right side. He was an inpatient about 34 days. He had suffered permanent disability which was assessed by the Medical Board in Ext.C1 to be 20%. He was a manual M.A.C.A. No.1386 of 2011 -: 2 :- labourer/coolie. Against the total claim of `3,50,000/-, the Tribunal awarded a total amount of `1,41,003/- as compensation as per the details given in paragraph 10 of the impugned award which we extract below :- |“Transport|- Rs. 500.00| |---|---| |Extra nourishment|- Rs. 500.00| |Loss of earnings (3000x2)|- Rs. 6,000.00| |Bystander's expenses|- Rs. 3,400.00| |(100 x 34)|| |Treatment expenses|- Rs. 5,403.00| |(8013 - 2610)|| |Pain and suffering|- Rs. 10,000.00| |Permanent disability|- Rs.1,15,200.00| |(3000x12x16x20/100)|| ||------------------------| |Total|- Rs.1,41,003.00| ||==========| 2. We have heard the learned counsel for the appellant and Sri.Ziyad Rahman, the learned counsel who has taken notice for the 3[rd] respondent Insurance Company. As per the impugned award the 3[rd] respondent is totally liable to satisfy the compensation awarded. The challenge in this appeal is only against the quantum of compensation awarded. M.A.C.A. No.1386 of 2011 -: 3 :- 3. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the monthly income reckoned by the Tribunal at `3,000/- is too inadequate. In the absence of any better evidence, the Tribunal has evidently chosen to rely on the decisions in **Laxmi Devi & others** v. **Mohammad Tabbar and another** [2008 ACJ 1488] and **Lata Wadhwa and others** v. **State of Bihar and others** [AIR 2001 SC 3218]. We are not persuaded to accept any higher amount as monthly income in the total absence of any better evidence. 4. The learned counsel for the appellant then submits that the Tribunal was wholly unrealistic in awarding compensation for loss of earnings for two months only. Considering the nature of the multiple injuries including fractures and the period of hospitalisation, the Tribunal must have come to a safe conclusion of prudence that there must have been involuntary unemployment for a longer period of time. Taking all the relevant circumstances M.A.C.A. No.1386 of 2011 -: 4 :- into account we are satisfied that there must have been involuntary unemployment of the appellant, a coolie by profession for a period of six months. 5. The learned counsel for the appellant next contends that under the head of extra nourishment only an amount of `500/- has been awarded even though it has come out clearly in evidence that the appellant was inpatient for 34 days. We agree with the learned counsel for the appellant that a higher amount of compensation ought to have been awarded under that head. We are satisfied that `100/- per day for the period of hospitalisation shall be adequate under that head. 6. The learned counsel for the appellant next contends that the amount of `10,000/- awarded under the head of pain and suffering is too low. Considering the nature of the injuries and the period of hospitalisation, we agree with the learned counsel for the appellant. We are satisfied that an amount of `15,000/- can be given as M.A.C.A. No.1386 of 2011 -: 5 :- compensation under the head of pain and suffering. 7. The learned counsel for the appellant next submits that the Tribunal had grossly erred in deducting the amount of `2,610/- from the bills produced by the appellant for the short reason that they do not bear the name of the appellant. The Tribunal was being unrealistic in the matter of an injured person and must have realistically taken note of the fact that the entire bills were for the period of hospitalisation. We are satisfied that in the facts and circumstances `7,500/- could safely be fixed as the quantum for compensation of medical expenses. 8. The learned counsel for the appellant finally contends that no amount of compensation has been awarded under the head of loss of amenities. The medical board had reported that appellant suffered 20% physical disability. The Tribunal had accepted that this disability of 20% must have resulted in reduction in earning capacity to the same extent though no better evidence was adduced by ## M.A.C.A. No.1386 of 2011 -: 6 :- the appellant to prove employment and income. The Tribunal awarded no amount under the head of loss of amenities. The Tribunal should have noted that physical disability suffered by a person would have two fold reflections in the life of the victim. It reduces the earning capacity. It also reduces and impair the quality of enjoyment of life. 32 year old appellant will have to live the rest of his life with 20% physical disability suffered by him. This will certainly reduce his natural enjoyment of life and also cause disfigurement, inconvenience, disabilities etc. in his daily life. We are satisfied that under the composite head of loss of amenities an appropriate amount deserves to be allowed. We are satisfied that an amount of `25,000/can be fixed as the quantum of compensation payable under this head. 9. Though the learned counsel for the appellant argues that 20% physical disability must be assumed to have resulted in larger extent of reduction in earning M.A.C.A. No.1386 of 2011 -: 7 :- capacity, we find no material available to arrive at such a conclusion. 10. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of `46,997/- (Rupees Forty Six Thousand Nine Hundred and Ninety Seven only) as shown below as compensation in addition of the amount already awarded by the Tribunal. |Loss of earnings|-|Rs.12,000.00| |---|---|---| |(ie; 6 x Rs.3,000 = 18,000 minus 6,000)||| |Extra nourishment|-|Rs. 2,900.00| |(34 x 100 = 3400 minus 500)||| |Pain and suffering|-|Rs. 5,000.00| |(15,000 – 10,000)||| |Medical bills|-|Rs. 2,097.00| |(7,500 – 5,403)||| |Loss of amenities|-|Rs.25,000.00| |||---------------------| |Total|-|Rs.46,997.00| |||=========| ## 11. **In the result** :- - (A) This appeal is allowed in part. (B) The appellant is found entitled to a further M.A.C.A. No.1386 of 2011 -: 8 :- amount of `46,997/- (Rupees Forty Six Thousand Nine Hundred and Ninety Seven 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 specified by the Tribunal in the impugned award. (D) All other directions of the Tribunal are upheld. **R. BASANT,** **JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt