Kishore Kumar v. The Divisional Manager, National Insurance Co. Ltd., Kollam (MACA No. 598 of 2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 MACA.No. 598 of 2010() ---------------------OPMV.1772/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): PETITIONER ------------------------ KISHORE KUMAR, AGED 20 YEARS, S/O.VIJAYAN PILLAI, PALHATTA VEEDU, VALIYAPADAM, WEST KALLADA. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): --------------- THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., KOLLAM. ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No. 598 of 2010-E ------------------------------------------------Dated this the 23[rd] day of August, 2011** ## **JUDGMENT** ## **Basant,J.** The appellant/claimant staked a claim for compensation for personal injuries suffered by him in a motor accident which took place on 30/11/2007. He was allegedly a Coolie and earning an income of `2,500/- per mensem as per the petition, though later he claimed that he was a businessman running a stationery shop getting a much higher income. He suffered compound fracture of both bones of the left leg (severely comminuted fracture of both bones of lower 1/3[rd] ). He was an inpatient for a period of 54 days. He suffered permanent disability as a result of the accident. 20% was certified to be the physical disability by the Medical Board to which the court had forwarded the claimant. Ext.C1 report gives the details of the physical disability including the consequent shortening of the leg by 1 cm. There was a mal-union of the ## **M.A.C.A. No. 598 of 2010** -: 2 :- tibia and fibula left. He was experiencing chronic pain of left leg during walking and prolonged standing. Against a total claim of `2,00,000/-, the Tribunal awarded a total amount of 1,59,900/- as per the details given in paragraph-8 of the impugned award which we extract below: ||**PART-I**|| |---|---|---| |(a)|Loss of earning for 3 months|Rs. 7,500/-| |(b)|Partial loss of earning|Nil| |(c)|Transport to the hospital|Rs. 2,000/-| |(d)|Extra nourishment|Rs. 2,000/-| |(e)|Damage to clothing and articles|Rs. 500/-| |(f)|Others - Bystander's expenses|Rs. 5,000/-| |(g)|Medical expenses|Rs. 73,863| ||**PART-II**|| |(h)|Compensation for pain and suffering|Rs. 15,000/-| |(i)|Compensation for continuing for permanent<br>disability (Rs.2500 x 12 x 18 x 10/100)|Rs. 54.000/-| |(j)|Compensation for the loss of amenities in<br>life|Nil| ||Total|Rs.1,59,863/- rounded as<br>Rs.1,59,900/- (Rupees one<br>lakh fifty nine thousand<br>and nine hundred only| 2. The challenge in this appeal is limited to the quantum of compensation awarded. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. First of all, it is contended that compensation ## **M.A.C.A. No. 598 of 2010** -: 3 :- awarded for pain and suffering is inadequate. Only `15,000/- has been awarded. He has been an inpatient for 54 days. We do not find much merit in the contention that the amount of compensation awarded under the head of pain and suffering is inadequate. The learned counsel for the appellant contends that the amount of compensation awarded under the head of permanent disability (reduction in earning capacity) calculated by multiplier-multiplicand method is incorrect. According to him, only an amount of `2,500/- has been reckoned as the monthly income. Even accepting that at the time of the accident the claimant was getting only an amount of `2,500/- by way of monthly income as a Coolie, while adopting the multiplicand for ascertainment of future reduction in earning capacity, a reasonable amount should have been reckoned as monthly income, contends counsel. We agree with the learned counsel for the appellant. We are satisfied that the multiplicand for the purpose of ascertainment of future reduction in earning capacity can safely be reckoned at `3,000/- per mensem. 3. The learned counsel then contends that only 10% has been accepted as the reduction in earning capacity, though the Medical Board had certified 20% as the physical disability. Whether as a Coolie or as a businessman running a stationery ## **M.A.C.A. No. 598 of 2010** -: 4 :- shop, the disabilities described in Ext.C1 must have led to reduction in earning capacity, contends counsel. The learned counsel, in these circumstances, submits that 20% must have been adopted as the reduction in physical disability. The same should have been reckoned as the reduction in earning capacity also, contends counsel. 4. The learned counsel for the insurance company, on the other hand, contends that the Tribunal had erred in accepting 18 as the multiplier. Actually only 17 could have been accepted as the multiplier going by the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] for a person like the claimant who was aged 26 years at the relevant time. We accept that submission. Regarding the extent of reduction in earning capacity, 20% is the disability suffered as per Ext.C1. The Tribunal accepted only 10% as the reduction in earning capacity. We have gone through the nature of the disability described in Ext.C1. Taking all the relevant circumstances into account, we are satisfied that 15% can be reckoned as the reduction in earning capacity. The amount payable under the head of compensation for reduction in earning capacity will hence have to be re-worked. 5. The learned counsel for the appellant next contends that ## **M.A.C.A. No. 598 of 2010** -: 5 :- no amount has been awarded under the head of loss of amenities. For the 26 years old claimant the physical disability must have entailed impairment of the quality of life. For this, the appellant is entitled to be compensated, it is contended. We agree with the learned counsel for the appellant. 6. The above discussions lead us to the conclusion that the appellant is entitled for the following further amount as compensation in addition to the amounts awarded by the Tribunal: 1. Compensation for reduction in earning capacity (`3,000/- x 12 x 17 x 15/100 - i.e., `91,800/- minus `54,000/-) ` 37,800/- 2. Compensation for loss of amenities (no amount awarded - by the Tribunal) ` 10,000/-------------- - Total ` 47,800/====== 7. The claimant had claimed an amount of `2,00,000/- as compensation. We are satisfied that the appellant is entitled for the entire amount claimed by him. Though the amount of loss exceeds `2,00,000/- (`1,59,863 + `47,800/-), we are satisfied that only the amount claimed need be awarded. 8. In the result: - (a) This appeal is allowed in part. ## **M.A.C.A. No. 598 of 2010** -: 6 :- (b) The appellant is found entitled to an amount of `2,00,000/- (Rupees two lakhs only) claimed by him along with interest at the rate and for the period as directed by the Tribunal. (c) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge) Sd/M.C. HARI RANI (Judge)** ## **Nan/** **//true copy// P.S. to Judge** ## **M.A.C.A. No. 598 of 2010** -: 7 :- # **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------C.M. Appl. No.733 of 2010 in M.A.C.A. No. 598 of 2010-E** **------------------------------------------------Dated this the 23[rd] day of August, 2011** ## **ORDER** This petition is to condone the delay of 128 days in filing an appeal. Heard both sides. We take a lenient view. Petition allowed. Delay condoned. **R. BASANT (Judge)** **M.C. HARI RANI (Judge)** **Nan/**