Lalu P. Varghese v. The Managing Director, Kerala State Road Transport Corporation, Thiruvananthapuram; John M.K.; The Branch Manager, Oriental Insurance Co. Ltd., Kothamangalam; The Branch Manager, National Insurance Co. Ltd., Trivandrum (Addl. R4)

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 26TH AUGUST 2011 / 4TH BHADRA 1933 MACA.No. 1342 of 2006 ----------------------OPMV.960/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT: APPELLANT/PETITIONER: ----------------------------------- LALU P. VARGHESE, AGED 28 YEARS, RESIDING AT PULIKKUNNEL HOUSE, VADATTUPARA, KOTHAMANGALAM. (BED RIDDEN - SEMI CONSCIOUS) REPRESENTED BY HIS BROTHER LILU P.VARGHESE, S/O.VARGHESE,AGED 26,RESIDING AT PULIKKUNNEL HOUSE VADATTUPARA, KOTHAMANGALAM. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ## RESPONDENTS: RESPONDENTS: --------------------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. JOHN M.K., MUNDAPLACKAL HOUSE, KATTAPPANA. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM. 4. THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., TRIVANDRUM(ADDL.R4). ADV. SRI.P.JAYASANKAR FOR R.4 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO. 1342 OF 2006 ============================** ## **Dated this the 26[th] day of August 2011** ## **JUDGMENT** ## **R.Basant, J.** The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 21/4/2002. He had suffered multiple injuries including fracture of the right frontal bone, brain contusion and fracture of the humerus **.** He was treated as inpatient from 21/4/2002 till 21/5/2002. He continued treatment as an out patient thereafter. He suffered permanent disability as a result of the accident. PW1, Doctor, who examined him issued Ext.A27 to confirm that he had suffered physical disability to the tune of 13 **%.** MACA 1342/2006 2 2. The Tribunal by the impugned award, against a claim of Rs.6,71,500/-, awarded only an amount of Rs.98,000/- as compensation as per the details given in the impugned award which we extract below: |**Sl.No.**|**Head of the claim**|**Amount**<br>**awarded**|**Remarks**| |---|---|---|---| |1|Loss of earning|Rs.6,000/-|1500x4| |2|Transport expenses to<br>hospital|Rs.1,000/-|| |3|Damage to clothing<br>and other articles|Rs. 500/-|| |4|Expenses of extra<br>nourishment|Rs.3,000/-|| |5|Medical expenses|Rs.43,500/-|| |6|Future expenses|nil|| |7|Bystander's expenses|Rs.4,000/-|| |8|Compensation for pain<br>and suffering|Rs.15,000/-|| |9|Compensation<br>for<br>continuing permanent<br>disability|Rs.15,000/|global| MACA 1342/2006 3 |**Sl.No.**|**Head of the claim**|**Amount**<br>**awarded**|**Remarks**| |---|---|---|---| |10|Compensation for loss<br>of earning power|nil|| |11|Compensation for loss<br>of amenities|Rs.10,000/-|| ||Total|Rs.98,000/-|| 3. We have heard the learned counsel for the appellant/claimant and respondent insurance company. The Insurance company has been made entirely liable to satisfy the award. The challenge against the award is directed only on the ground of inadequacy of the quantum of compensation. 4. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the monthly income accepted by the Tribunal is only Rs.1500/-. The appellant/claimant was a businessman running a book shop. He was aged 28 years. No better evidence was of course made available before the Tribunal to prove the income of the claimant/appellant. Learned counsel for the appellant contends MACA 1342/2006 4 that in any view of the matter, reasonable inferences about the monthly income of a young business man aged 28 years must have been drawn by the Tribunal. 5. We find force in that submission. The accident had taken place in April 2002. We must alertly take note of the presumption of notional income of a non earning person vide Clause 6 of the 2[nd] Schedule to the Act. This was enacted a decade prior to the date of the accident. We also take note of the decisions of the Supreme Court in **Lata Wadhwa and Others v. State of Bihar and Others[A.I.R. 2001 S.C.3218]** and **Laxmi Devi v. Mohammad Tabbar [2008 A.C.J. 1488],** which suggest that a non earning home maker/house wife as also an unskilled labourer can safely be assumed to earn a monthly income of Rs.3,000/-. We find no reason not to invoke that presumption of prudence in so far as the claimant/appellant is concerned. 6. Learned counsel for the appellant then contends that the Tribunal has awarded only a global amount of Rs.15,000/- under the head of permanent disability and loss of earning power. Ext.A27 disability certificate and the oral evidence of PW1 must MACA 1342/2006 5 have convinced the court that the appellant has suffered physical disability. The same has been accepted by the Tribunal and the Tribunal had infact awarded an amount of R.15,000/under the head of physical disability and loss of earning power and a further amount of Rs.10,000/- under the head of loss of amenities. The short grievance of the learned counsel for the appellant is that the Tribunal has not scientifically and rationally ascertained the quantum of compensation payable. 7. We find force in that submission. We have been taken through Ext.A27. 13 **%** disability is said to have resulted. We take note of the nature of the injuries and the period of treatment. We particularly take note of the contents of Ext.A27. PW1, Doctor who issued Ext.A27 has tendered evidence in support of his conclusion. We are satisfied in the totality of the circumstances that the physical disability certified by PW1 in Ext.A27 can safely be accepted. Physical disability and reduction in earning power are different conceptually. Considering the extent of physical disability certified by PW1 in Ext.A27 and considering the nature of employment of the appellant as a book shop owner, we are satisfied that 10% can MACA 1342/2006 6 safely be assumed to be the reduction in earning capacity. The appellant was aged 28 years and for persons aged 25-30 years, going by the dictum in **Sarla Verma v. Delhi Transport Corporation[ (2009) 6 S.C.C. 121],** we are satisfied that 17 can be reckoned as the multiplier. The appellant would hence be entitled for further amount under the head of loss /reduction in earning capacity. 8. Physical disability suffered by a person leaves behind two fold reflections on his life. It reduces the earning capacity. It also reduces and impairs the quality of enjoyment of life. We are satisfied that the 28 year old appellant/claimant will be forced to endure the evil effects of the disability suffered by him for the rest of his life. We are satisfied that an appropriate enhanced amount of compensation deserves to be granted for loss of amenities also. 9. We are not satisfied that the amount awarded under any other head deserves or warrants interference. 10. On the basis of the above discussions, we are satisfied that the appellant/claimant is entitled for a further amount of Rs. MACA 1342/2006 7 ## 62,200/- as per the details shown below: |1|Loss of earnings|Rs.6,000/-|(3000x4= 12000 minus<br>6000)| |---|---|---|---| |2|Reduction in earning<br>capacity|Rs.46,200/-|(3000x12x17x10/100 =<br>61200 minus 15000| |3|Loss of amenities|Rs.10,000/-|(20000 minus 10000)| ||Total|Rs.62,200/-|| 11. Learned counsel for the appellant finally argues that interest awarded is painfully low (6%). We agree that interest is liable to be awarded at a higher rate. We fix the interest at 7.5% per annum. ## 12. In the result a) this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs.62, 200/- (Rupees sixty two thousand two hundred only) in addition to the amount already awarded by the Tribunal. MACA 1342/2006 8 c)We direct that interest shall be paid on the entire amount of compensation at the rate of 7.5% per annum from the date of the petition to the date of payment/realisation. d)All other directions of the Tribunal are upheld. ## **R.BASANT, JUDGE** **ks.** **M.C. HARI RANI,JUDGE**