K. Padmini v. Henry Joseph and others (MACA No. 98 of 2009)

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 3RD AUGUST 2011 / 12TH SRAVANA 1933 MACA.No. 98 of 2009() --------------------OPMV.1446/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): - -------------- K.PADMINI, W/O. MALIAKKAL NARAYANAN, KAVIL, KODAKARA, THRISSUR DIST. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): --------------- 1. HENRY JOSEPH, S/O.PUTHENVEETTIL INASU, PUDUKKAD, VIYYOOR, THRISSUR DISTRICT. 2. BABU, S/O. KOTTARAKUNNIL MARKOSE, KARANCHIRA, KIZHAKKUMCHERI, PALGHAT DISTRICT. 3. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, PERINCHERY BUILDING, BRANCH THRISSUR. 4. M.D. NARAYANAN, S/O. MALIAKKAL DAMODARAN NAIR, KAVIL, KODAKARA P.O., THRISSUR DISTRICT. 5. SIVADAS, PATTATHIL UNNIKRISHNAN NAIR, VASUPURAM, MATTATHURKUNNU, KODAKARA. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.98 of 2009 ---------------------------------------Dated this the 3[rd] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. She, a woman aged 44 years, suffered injuries in a motor accident that took place on 24/08/2002. She claimed compensation for personal injuries suffered by her. Against a claim of Rs.6,00,000/-, the Tribunal awarded only an amount of Rs.1,53,600/- as per the details given below: |**_Head Under which claim made_**|**_Amount claimed in_**<br>**_Rs._**|**_Amount awarded in_**<br>**_Rs._**| |---|---|---| |Loss of Earning|11250|8000| |Transport to Hospital and other<br>conveyance charges|2750|1000| |Damage to clothing and article|1500|| |By-stander expenses|4500|2600<br>(including that of the<br>injured)| |Treatment expenses|90000|77000| |Compensation for pain and sufferings|30000|30000| |Compensation for loss of amenities|40000|| |Compensation for loss of memory and<br>disfiguration of face|20000|35000(For Physical<br>disabilities)| |Compensation for permanent partial<br>disability and loss of future earning<br>capacity|400000|| |**Total**|**6,00,000/-**|**1,53,600/-**| 2 M.A.C.A.No.98 of 2009 2. The appellant claims to be aggrieved by the impugned award. The challenge is only against the quantum of compensation awarded. 3. Called upon to be specific and explain the nature of the challenge, the learned counsel for the appellant first of all contends that the Tribunal erred in reckoning the monthly income of the appellant as Rs.2,000/- only. This is grossly inadequate. The appellant had claimed that she is employed ; but even reckoning her as a mere home maker, her income should have been reckoned atleast at Rs.3,000/- per month as laid down in **Latha Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** . 4. The next ground of challenge is that the Tribunal has grossly erred in not reckoning the reduction in earning power. It may be correct that the appellant has not been able to show that she was working for gain outside her home; but certainly it has been established that she was attending to domestic chores and was discharging her duties as a home maker. If that be the case, the disabilities suffered would impair quality of her work as a home maker and for this, certainly compensation is liable to be granted, argues counsel. We do certainly agree with the counsel 3 M.A.C.A.No.98 of 2009 for the physical disability to perform her work as a home maker, she is entitled to be compensated. We have already taken the view that Rs.3,000/- can be reckoned as monthly income following **Latha** (Supra). 5. Next question is about the question of disability. Medical certificate proved by PW2 shows that she has suffered disability to the tune of 45%. There is convincing evidence to show that she had completely lost vision of one eye. There was partial loss of vision of other eye also. In addition to that, she had suffered impairment in hearing also, it is certified. The Tribunal did not accept the same on the ground that PW2 was not an expert Ophthalmologist. She was a Neurosurgeon. It is evident that there was complete loss of vision of one eye and loss of partial vision in the other eye. This can safely be accepted. We then refer to Entry 26 and 26A of part 2 of schedule 1 of the Employees Compensation Act. It is seen that with the help of those two entries, it can safely be concluded that the appellant has suffered disability to the extent of 40% (30 + 10). This is in tune with the evidence tendered by PW2 and the certificate issued. Other certificates issued also show that there is complete loss of vision of one eye and partial loss of vision of the 4 M.A.C.A.No.98 of 2009 other. In these circumstances, we are of the opinion that it is absolutely safe to conclude that 40% disability was suffered by the appellant. 6. In the course of discussions, we had thought of referring the appellant to a medical board; but considering the time lag involved, we thought it appropriate to safely go to the relevant entries in the schedule to the Employees Compensation Act. We are satisfied that 40% is the inevitable minimum disability suffered by the appellant. The learned counsel for the appellant accepts that the remand can be avoided and disability can be computed by reference to the relevant entries in the schedule. We bear in mind the principle that the burden is always on the claimant to establish the quantum of loss suffered. But even in the absence of crisp, cogent and best evidence about such loss, tribunals or courts would be perfectly justified in awarding compensation for the minimum indisputable loss suffered. So reckoned, we find that the appellant would be entitled to a further amount of Rs.2,01,600/- as shown below as compensation for disability and its reflection on her ability to function as a home maker. 5 M.A.C.A.No.98 of 2009 Compensation for reduction in ability to function as a home maker : Rs.2,01,600/(Rs.3,000 x 12 x 14 x 40/100) 7. One short question survives whether this amount has to be reckoned in addition to compensation for loss of amenities, disfiguration of face, loss of memory etc. granted by the Tribunal. An amount of Rs.35,000/- has been awarded. Physical disability suffered by a person has two fold reflections on the life of the victim. It affects the capacity of the individual to engage himself/herself in productive ventures. This leads to a reduction in earning capacity. In the case of a home maker also, she suffers reduction in her capacity to perform functions in connection with the home management/home making. The physical disability suffered has another dimension/reflection. It impairs the quality of enjoyment of life. An amount of Rs.35,000/- awarded is the compensation for loss of amenities, loss of memory and disfiguration of face etc. The amount calculated by us by the multiplier-multiplicand method is compensation for reduction in her ability to function as a home maker. We are satisfied that an amount of Rs.35,000/- already awarded under the composite head of loss of amenity etc. need 6 M.A.C.A.No.98 of 2009 not be reduced from the amount of Rs.2,01,600/- which is being awarded by us. 8. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.2,01,600/- as shown above. We are satisfied that the amounts awarded under the other heads do not deserve to be altered/enhanced. 9. In the result, a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of **Rs.2,01,600/-** (Rupees two lakhs one thousand and six hundred only) in addition to the amount already awarded by the Tribunal. c) We direct that the entire amount of compensation shall bear interest at the rate and for the period specified by the Tribunal. d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.98 of 2009 7 M.A.C.A.No.98 of 2009 8 9 M.A.C.A.No.98 of 2009 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010