Jyothish v. Divisional Manager, National Insurance Co. Ltd., Kollam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933** ## **------------------------------OPMV.54/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ....................** ## **APPELLANT/PETITIONER:** **JYOTHISH, AGED 31 YEARS, S/O.PAPPU, JYOTSNA, THRIKKOVILVATTOM, KOLLAM.** ## **BY ADV. SRI.PRATHEESH P.** ## **1. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., KOLLAM.** **2. MR.BHASKARAN PILLAI, RADHA BHAVANAM, KARAMCODE, ULIYANADU.** **3. SHAFEEQUE, VILAYIL VEEDU, ARUNOTTI MANGALAM, MANGAD, KOLLAM.** - **ADVS. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.H.RAMANAN FOR R2 SRI.JAMES JOSE FOR R2 SRI.ALEX N.MATHEW (KOLLAM) FOR R2 SRI.P.JACOB MATHEW FOR R1** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE** ## **R. BASANT & M.C.HARI RANI, JJ.** **----------------------------------------------------------------M.A.C.A. No.488 of 2010 ---------------------------------------------------Dated this the 12[th ] day of August, 2011** ## **JUDGMENT** ## **R. BASANT,J.** Claimant is the appellant. He claimed an amount of Rs.5,00,000/- as compensation for personal injuries suffered by him in a motor accident, which took place on 10.07.2005. The Tribunal came to the conclusion that respondent driver was responsible for the accident. The Tribunal found that the respondent Insurance company is liable to pay the compensation amount, but gave a direction in favour of the Insurance Company under Section 149(4) of the Motor Vehicles Act, that the amount can be recovered from the insured, after effecting the payment. 2. All the respondents have been served. There is no cross appeal or objections against the impugned award. We have heard the learned counsel for the appellant-claimant, respondent/owner and respondent/ Insurance company. 3. The challenge was raised against the impugned award only on the ground of quantum of compensation. **M.A.C.A. No.488 of 2010 2** 4. Called upon to explain, the nature of the challenge and be specific, the learned counsel for the appellant assails the impugned award on the following grounds: 1. The quantum of monthly income reckoned by the Tribunal at Rs.2,000/- is grossly inadequate. 2. The extent of physical disability/percentage reduction in earning capacity reckoned by the Tribunal at 12% is grossly inadequate. The Tribunal should have accepted at 41% as the physical disability as borne out by Ext.A8. 3. The amount awarded under all heads are inadequate. 5. The Tribunal had awarded the amount of Rs.1,04,300/- as per the details given in paragraph 8 of the impugned award, which we extract below: |ich|we extract below:|| |---|---|---| |||| |(a)|Loss of earning for 3 months(3X2000)|Rs. 6,000/-| |(b)|Partial loss of earning|Nil| |©|Transport to the Hospital|Rs.500/-| |(d)|Extra nourishment|Rs.1,000/-| |(e)|Damage to Clothing and Articles|Rs. 500/-| **M.A.C.A. No.488 of 2010 3** |||| |---|---|---| |(f)|Others-Bystander expenses|Rs.1,900/-| |(g)|Medical expenses|Rs.32,515/-| |(h)|Compensation for pain and suffering|Rs.10,000/-| |(i)|Compensation for Continuing for permanent<br>disability(Rs.2000X12X18X12/100)|Rs.51,840/-| |(j)|Compensation for the Loss of amenities in life|Nil| ||Total|Rs.1,04,255/- rounded<br>as<br>Rs.1,04,300/-<br>(Rupees One Lakh four<br>thousand and three<br>hundred only)| 6. The appellant had claimed that he was a photographer and he was earning an income of Rs.2,500/-. The Tribunal reckoned the monthly income to be only Rs.2000/-. This is not justified, contends the learned counsel for the appellant. The learned counsel for the appellant draws our attention to clause 6 of the second schedule which permits and enables the court to draw the inference of prudence that even a non-earning person as early as in 1994 can be assumed to earn a monthly income of Rs.1,250/-. The learned counsel for the appellant further draws our attention to the dictum laid down in **Lata Wadhwa v.** ## **M.A.C.A. No.488 of 2010 4** **State of Bihar and others [AIR (2001) SC 3218],** which again shows that even a non-earning homemaker/house-wife can be assumed to earn an income of Rs.3,000/-. We are satisfied that monthly income at the rate of Rs.2,500/- could have been accepted for the purpose of ascertaining the immediate loss of earnings. It could also have been reckoned at Rs.3,000/- per month for ascertaining the quantum of compensation payable under the head of loss of earning capacity. 7. The learned counsel for the appellant then contends that the Tribunal erred in reckoning only 12% as the extent of physical disability. He heavily relies on Ext.A8 certificate, which shows that the appellant had suffered physical disability to the tune of 41%. The said 41% is assessed in Ext.A8 on the following details: 1) Post traumatic Anosmia (11%) 2) Post traumatic visual impairment (12%) 3) Left Hemiparesis(10%) 4) Deafness(mild) left ear(8%) 8. The Tribunal did take note of Ext.A8. The Tribunal opined that the author of Ext.A8 has not been examined. The Tribunal took note of the fact that there was no application to ## **M.A.C.A. No.488 of 2010 5** get the quantum of physical disability assessed authentically by reference to a Medical Board. The Tribunal further noted that the author of Ext.A8 ought to have perused and verified the documents relating to injury/treatment. The Tribunal further noted that though percentages are shown, it is not shown as to whether it is the percentage of disability of whole body functioning or of the particular part affected. In these circumstances, the Tribunal took the view that 12% can be reckoned as the physical disability. The learned counsel for the appellant submits that in the light of the inputs available, the acceptance of only 12% of the disability is, at any rate, unjustifiable. 9. One must remind oneself that the burden is always on the claimant to make authentic data available before the Tribunal to get the loss quantified and assessed with precision. The appellant-claimant has totally failed in discharging this obligation. But even in such circumstances, Tribunals cannot throw their hands up in helplessness **,** but must proceed to award the indisputable minimum amount of compensation on the basis of the inputs available. In the instant case, the ## **M.A.C.A. No.488 of 2010 6** Tribunal evidently adopting the same principle reckoned the physical disability at 12%. We feel that it would be more reasonable to reckon the physical disability at 15% even in the absence of any better evidence. To that extent challenge on this ground succeeds. 10. The learned counsel for the appellant then contends that after accepting that the 26 year old young claimant had suffered physical disability, the Tribunal had not awarded any amount under the head of loss of amenities. Physical disability suffered by a person leaves behind two fold reflections on the life of the victim. It reduces the earning capacity; it also impairs the quality of enjoyment in life. For both dimensions resulting from physical disability, the injured claimant is entitled to compensation. In the instant case, only 15% is reckoned by us as the reduction in earning capacity and we are satisfied that the appellant is certainly entitled to compensation for the loss of amenities. Under these heads will be included all the resultant inconvenience and difficulties in life which appellant will have to endure because of the physical disability in future. We do take into account, loss of expectation of life as also depletion in the ## **M.A.C.A. No.488 of 2010 7** future prospects of the appellant, a young bachelor at the time of the accident. Taking all the relevant circumstances into account, we are satisfied that the amount of compensation payable can be fixed. 11. Only an amount of Rs.10,000/- has been awarded under the head of pain and suffering. The appellant/claimant had suffered haemorrhagic contusion in right frontal region, subdural haemorrhage-Brain oedema, Linear fracture squamous part right temporal bone etc. He was an inpatient for 19 days and was in coma for the first 10 days of treatment. Taking all the relevant circumstances into account, a higher amount of compensation ought to be awarded and the amount of Rs.10,000/- is too inadequate, contends the counsel. We agree. We are not satisfied that the amounts awarded under any other heads warrant interference invoking our appellate jurisdiction under Section 173 of the M.V.Act. We agree that only 17( and not 18) can be reckoned as the multiplier in the light of the dictum in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 1211].** **M.A.C.A. No.488 of 2010 8** 12. On the basis of above discussions, we come to the conclusion that the appellant is entitled to the following further amounts in addition to the amount ordered by the Tribunal. 1. Loss of earnings Rs. 1,500/- (3X2500-6000) 2. Pain and suffering Rs. 7,500/- (17500-10,000) 3. Compensation for reduction in earning capacity Rs.39,960/(3000X12X17X15/100= 91800-51840 = 39960) ## 4. Loss of amenities Rs. 30,000/- ----------------------------------Total Rs. 78,960/----------------------------- ------------------------------ ## 13. In the result: - a. This appeal is allowed in part. - b. The appellant is found entitled to a further amount of Rs.78,960/- (Rupees seventy eight thousand nine hundred and sixty only) in addition to the amount already awarded by the Tribunal. **M.A.C.A. No.488 of 2010 9** - 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. - d. All other directions issued by the Tribunal (Including the one under Section 149(4) of the M.V.Act) are upheld. ## **R. BASANT, JUDGE** ## **M.C.HARI RANI, JUDGE** **ln**