## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN**
**& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**MONDAY, THE 4TH DAY OF NOVEMBER 2013/13TH KARTHIKA, 1935**
## **MACA.No. 272 of 2007 ( )**
**------------------------AGAINST THE AWARD IN OP(MV) NO. 672/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 30-09-2006**
**----------------------**
## **APPELLANT/PETITIONER :**
**----------------------------------------**
**JOSEPH MATHEW @ JOSE, THEKKEKUTTU (H), KALKETTY P.O., PINNACKANADU.**
**BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA**
## **RESPONDENTS/RESPONDENTS :**
**-------------------------------------------------**
**1. TOMY GEORGE @ TOM, NO.13,MURUGESA NAGAR, LAWSPET, PONDICHERY, NOW RESIDING AT VATTAKKATT THAMPALAKADU P.O., PONKUNNAM.**
## **2. SHINTO CHACKO, PANTHAPLACKAL,**
## **KANJIRAMATTOM P.O., CHENGALAM. (*DELETED)**
**3. THE ORIENTAL INSURANCE CO. LTD.,**
- **KANJIRAPPALLY, REP. BY THE BRANCH MANAGER.**
***RESPONDENT NO. 2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DTD. 12/6/2013 IN IA NO. 1488/13 IN MACA NO. 272/07.**
## **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Mn**
## S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.
==================
## M.A.C.A.No. 272 of 2007
==================
Dated this the 4[th] day of November, 2013 J U D G M E N T
## K.Ramakrishnan, J.:
The claimant in O.P.(M.V).No.672/2003 on the file of the Motor Accidents Claims Tribunal, Pala, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disability sustained by him in a motor vehicle accident caused on account of the negligent driving of the vehicle by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. (The 2[nd] respondent was deleted from the party array as per order in I.A.No.1488/2013 dated 12.6.2013). After considering the evidence on record, the Tribunal found that the accident occurred due to negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of ` 1,96,700/- on various heads as follows:
m.a.c.a.272/07 - : 2 :-
||Head of claim||Amount<br>awarded<br>`|Amount<br>awarded<br>`|
|---|---|---|---|---|
|1|Medical expenses||23,450.00||
|2|Loss of earnings||18,000.00||
|3|Bystanders expenses||4,500.00||
|4|Extra nourishment||500.00||
|5|Damages to clothing||250.00||
|6|Transport to hospital||2,000.00||
|7|Permanent partial disability||108,000.00||
|8|Loss of amenities|||20,000.00|
|9|Pain and suffering|||20,000.00|
||Total||1,96,700.00||
Dissatisfied with the quantum of compensation awarded, the appellant has come before this Court with the above appeal claiming enhancement.
2. Since the liability of the insurance company is admitted, we thought of disposing of the appeal at the admission stage itself after hearing the learned counsel for the insurance company as well. Notice to the 1[st] respondent is dispensed with as he was served with notice in the delay condonation application with information of appeal as well.
3. Heard the learned counsel for the appellant and the learned standing counsel for the insurance company.
4. The learned counsel for the appellant submitted that the appellant was aged only 42 years and rubber dealer-cumplanter by profession and getting ` 15,000/- per month. But the
m.a.c.a.272/07 - : 3 :-
Tribunal has arbitrarily fixed his monthly income as ` 3,000/- for the purpose of assessing compensation under the head, loss of earning for the period of treatment, and further reduced to ` 2,000/- for the purpose of assessing compensation under the head, loss of earning capacity, which is unsustainable in law. Further, the Tribunal has considered the orthopedic disability mentioned in Ext.A11 and did not consider Exts.A12 and A13 certificates, which will go to show that he is having some other difficulties as well. He is having loss of smell and loss of hearing on account of the injuries. That has affected his earning capacity. After the accident, he is not able to do his work and entrusted his work to his brother and he is looking after the business. So according to him, he had suffered total disability. Further, the amount awarded under the head, loss of amenities is also low considering the nature of disability suffered by him. So, according to the learned counsel for the appellant, the appellant is entitled to get enhancement on all heads.
5. On the other hand, the learned counsel for the insurance company submitted that the documents produced will go to show that after the accident, his income has been increased. So, there is no loss of income and the disability has
m.a.c.a.272/07 - : 4 :-
not affected his earning capacity as well. Further, the correct multiplier as per the decision reported in **Sarla Verma v. Delhi**
**Transport Corporation** , 2010 (2) KLT 802 (SC), is 14 for the age group of 42 years, as the appellant was at the time of the accident and not 15 and as such, the total compensation awarded
is just and proper. Therefore, no interference is called for at the hands of this Court is the contention raised.
6. We have considered the rival contentions of both parties in detail.
7. The case of the appellant was that he was a rubber dealer and planter and getting ` 15,000/- per month. He had produced his income tax returns for the period 2003-2004, which was filed after the accident. The Tribunal has considered that and come to the conclusion that he was having a total income of ` 35,704/- as per the return and assessed his monthly income income as ` 3,000/-. So we are not inclined to interfere with the finding of the Tribunal regarding the income fixed as it appears just and proper. But the Tribunal has taken only ` 2,000/-for the purpose of assessing compensation under the head, loss of earning capacity. That is on the basis that the business is being done by his brother and he will have to pay only supervision
m.a.c.a.272/07 - : 5 :-
charges. If monthly income is taken as ` 3,000/- and also considered 28% disability assessed by the doctor for the purpose
of calculating the compensation under the head, loss of earning capacity, the Tribunal was not justified in reducing the monthly income to ` 2,000/- from ` 3,000/- for this purpose. There is force in this submission. So we are inclined to take the monthly income as ` 3,000/- for the purpose of assessing compensation under the head, loss of earning capacity as well. Ext.A11 certificate shows that he is having the following difficulties:
“.... As per the certificate he has difficulty in squatting, shortening of left lower limb by 4 cm and restriction of movements of right wrist by terminal 20 degrees dorsiflexion and palmar flexion, left wrist by terminal 15 degrees dorsiflexion and palmar flexion, left knee by terminal 30 degrees flexion, left hip by terminal 30 degrees flexion, 20 degrees rotations and 15 degrees abduction restricted. Right ankle movement is restricted by terminal 15 degrees dorsiflexion and plantar flexion. Union of fracture of femur with 15 degrees anterolateral angulation, abundant callus present, union of medial malleous with 10 degrees medial angulation, union of fracture of distal radius of right wrist with 15 degrees anterolateral angulation and union of fracture of distal radius of left wrist with 10 degrees anterolateral angulation.”
Exts.A12 and A13 certificates produced will go to show that he is having earing loss bilaterally and complete loss of smell and loss of taste present. Ext.A13 is dated 25.4.2006. The doctor, who issued the same was not examined as well. Though the Tribunal has taken 28% disability, it appears that the loss of earning capacity has been considered on the basis of other materials
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available on record as well. So we are not inclined to enhance the percentage of disability for the purpose of assessing compensation under the head, loss of earning capacity, and this disability can be considered while considering the amount to be awarded under the head, loss of amenities in life. There is some force in the submission made by the learned counsel for the insurance company that the correct multiplier applicable to the age group of 42 is 14 and not 15 as per the dictum laid down by the Supreme Court in **Sarla Verma's case** (supra). If a recalculation is made on the basis of taking his income as ` 3,000/per month, 14 as multiplier and percentage of disability as 28%, then he will be entitled to get ` 1,41,120/- instead of ` 1,08,000/awarded by the Tribunal under the head, loss of earning power. The difference would be ` 33,120/- and we award that amount under that head over and above what has been awarded by the Tribunal. The Tribunal has awarded ` 20,000/- under the head, loss of amenities. Considering the nature of injuries sustained and the disabilities noted above, he will have to live with this difficulty for the remaining period of his life. It may have great impact on his personal life. So we are of opinion that ` 20,000/awarded by the Tribunal is on the lower side and we enhance the
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same to ` 40,000/-. We do not find any reason to interfere with the amounts awarded by the Tribunal under the other heads as the amounts awarded by the Tribunal under the other heads are just and proper. In all, the appellant will be entitled to get an additional compensation of ` 53,120/- over and above what has been awarded by the Tribunal, which the 3[rd] respondentinsurance company is liable to pay with 9% interest from the date of petition till date of payment. Two months' time is granted to the insurance company to deposit this amount as well.
With the above modification of the impugned award of the Tribunal, the appeal is disposed of.
Sd/-
S.SIRI JAGAN, JUDGE
sdk+
Sd/K.RAMAKRISHNAN, JUDGE
///True copy///
P.A. to Judge
