Jayamohan v. Pushpalatha, Madhusoodanan Nair and The Oriental Insurance Company Limited

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 17TH AUGUST 2011 / 26TH SRAVANA 1933 MACA.No. 1355 of 2005() ----------------------OPMV.538/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/APPLICANT --------------------------------- JAYAMOHAN, S/O.R.P.KUTTAN, MANGALAVILASOM VEEDU, THAZHAMANGALAM (P.O), NEYYATTINKARA, TRIVANDRUM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENTS: --------------- 1. S.PUSHPALATHA, THUDIYALAZHNYI VEEDU, HOUSE NO.V/330. THIRUPURAM, NEYYATTINKARA. 2. MADHUSOODANAN NAIR, SREEJA NIVAS, KARI NADA, VLANGA, NEYYATTINKARA. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.1, THAKARAPARAMBU JUNCTION, PAZHAVANGADI, TRIVANDRUM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1355 of 2005 ---------------------------------------Dated this the 17[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 05/12/2001. Against a total claim of Rs.2,00,000/-, the tribunal awarded a total amount of Rs.44,850/- as per the details given in the impugned award which we extract below: |**_Sl.No_**|**_Head of claim_**|**_Amount_**<br>**_claimed (Rs.)_**|**_Amount_**<br>**_awarded (Rs.)_**| |---|---|---|---| |1|Loss of earning actual|30,000/-|4,000/-<br>(Rs.2,000/- x<br>2)| |2|Transport to hospital|2,000/-|1,000-| |3|Extra nourishment|2,000/-|Nil| |4|Damage to clothing|500/-|250/-| |5|Cost of medicine/Medical expenses|5,000/-|2,000/-| |6|By-stander expenses|2,000/-|Nil| |7|Pain and suffering|25,000/-|10,000/-| |8|Compensation for permanent partial disability|75,000/-|21,600/-<br>(Rs.2,000/- x<br>12 x 15 x<br>6/100)| |9|Loss of future earning power|75,000/-|Nil| |10|Loss of amenities|25,000/-|6,000/-| ||**Total**|**2,00,000/-**|**44,850/-**| 2 M.A.C.A.No.1355 of 2005 2. The learned counsel for the appellant and the learned counsel for the insurance company have advanced their arguments. The learned counsel for the appellant assails the impugned award on the short ground that the quantum of compensation awarded is inadequate. 3. Called upon to explain and be specific, the learned counsel for the appellant points out that the appellant had suffered serious injuries including anterior wedge compression fracture T12 vertebra. He was an in-patient for a period of 47 days. He had suffered permanent disability which was assessed by the doctor on the Mc.Bride's scale at 18%. The appellant was employed as a Kuri Canvassing Agent of the K.S.F.E. According to him, he was getting a monthly income of Rs.6,000/-. 4. The learned counsel for the appellant assails the impugned award on various grounds. 5. First of all, it is contended that the tribunal had erred grossly in reckoning the monthly income of the appellant at Rs.2,000/- only. A higher amount of monthly income should, at any rate, be accepted, contends counsel. The tribunal must have realistically noted that as early as in 1994, clause 6 of the second schedule permits tribunals to draw the presumption of prudence 3 M.A.C.A.No.1355 of 2005 that even a non-earning person must have been earning an amount of Rs.1,250/- per month. The counsel also points out that in **Latha Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** the Supreme Court has accepted that the monthly income of a non-earning home maker/housewife can also be reckoned at Rs.3,000/-. In these circumstances, the counsel argues that the monthly income of the appellant could not, at any rate, have been reckoned at a figure below Rs.3,000/in 2001. We agree with the learned counsel for the appellant. 6. The learned counsel for the appellant then contends that the amount of compensation awarded under the head of pain and suffering is grossly inadequate. Considering the nature of injuries suffered including anterior wedge compression fracture T12 vertebra and the period of hospitalisation for a period of 47 days, a higher amount ought to have been awarded under the head of pain and suffering, contends the counsel. We are persuaded to agree. The learned counsel for the appellant then points out that even though the tribunal had accepted that the appellant was an in-patient for a period of about 47 days, no amount whatsoever has been awarded under the head of extra nourishment and bystander expenses. The 4 M.A.C.A.No.1355 of 2005 counsel prays and we agree that amounts are liable to be awarded as compensation under those heads. 7. The counsel assails the quantum of compensation awarded under the head of reduction in earning capacity by resorting to the multiplier-multiplicand method. Though 18% was certified to be the permanent disability by the doctor, the tribunal had accepted only 6% as the reduction in earning capacity. Considering the nature of injuries, the nature of employment of the appellant and the nature of the resultant disability, we find that the tribunal had committed no error in accepting 6% alone as the extent of reduction in earning capacity for the alleged disability suffered by the appellant. Details of the alleged disability are available in Ext.A9 certificate, it is pointed out. 8. The learned counsel for the insurance company alertly points out that for a person like the appellant who belong to the age group of 40-45 years, the multiplier that is permissible by application of the dictum in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** is only 14. The tribunal had wrongly assumed the multiplier as 15, submits counsel. Finally, the counsel submits that 18% physical disability which has led to result in reduction 5 M.A.C.A.No.1355 of 2005 in earning capacity to the extent of 6% has certainly led to reduction of the quality of life of the appellant. For this dimension of the loss, only an amount of Rs.6,000/- has been awarded. This amount deserves to be modified and enhanced, contends counsel. Considering the age of the appellant and nature of the physical disability suffered, we are satisfied that a higher global amount is liable to be granted under the head of loss of amenities. In holding so, we take into account all other dimensions of the loss resulting from the physical disability suffered - in addition to the compensation payable for reduction in earning capacity ascertained by the multiplier-multiplicand method. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.31,690/- as compensation in addition to the amount already awarded by the tribunal. Loss of earnings Rs.2,000/- (Rs.3,000/- x 2) minus Rs.4,000/Extra nourishment and bystander expenses Rs.7,050/(47 x 150) M.A.C.A.No.1355 of 2005 6 pain and suffering Rs.5,000/(Rs.15,000/- minus Rs.10,000/-) Reduction in earning capacity Rs.8,640/[Rs.30,240/- (Rs.3,000/- x 12 x 14 x 6/100) minus Rs.21,600/-] Loss of amenities Rs.9,000/(Rs.15,000/- minus Rs.6,000/-) ---------------- **Total Rs.31,690/=======** 10. In the result, a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.31,690/- (Rupees thirty one thousand six hundred and ninety 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 directed by the tribunal under the impugned award. d) All other directions issued by the tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1355 of 2005 7 M.A.C.A.No.1355 of 2005 8 9 M.A.C.A.No.1355 of 2005 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010