M. Anas v. N.K. Abdurahiman, P. Shajahan and The United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935** **MACA.No. 1054 of 2008 (U) -----------------------------------** **OPMV 120/2002 of MOTOR ACCIDENT CLAIMS TRIBUNBAL, KALPETTA** **---------------** ## **APPELLANT/PETITIONER:** **------------------------------------** **M. ANAS, AGED 35 YEARS, S/O.LATE AMMED, MAYIN HOUSE, KAMBALAKKAD POST, KANIYAMPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADVS.SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR)** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** ## **1. N.K. ABDURAHIMAN, KUNDATHIL HOUSE,** **UNNIKULAM POST, THAMARASSERY, KOZHIKODE DISTRICT.** ## **2. P. SHAJAHAN,S/O.AHMMEDKUTTY,** **AGED 32 YEARS, VETTAKKONIKANDY, KEEZHIMANNEL POST UNNIKULAM, THAMARASSERY, KOZHIKODE DISTRICT.** **3. THE UNITED INDIA INSURANCE CO.LTD, BRANCH OFFICE, VELIMANNA BUILDING, THAMARASSERY POST, PIN-673 573.** **R1-2 BY ADV. SRI.VINOD SINGH CHERIYAN R1-2 BY ADV. SRI.R.SUDHISH R3 BY ADV. SRI.K.SANDESH RAJA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------- M.A.C.A. No.1054 of 2008 --------------------------------------------------------------Dated this, the 20[th] day of June 2013 ## Judgment ## Siri Jagan, J. A 28 year old man, who is the appellant herein, suffered injuries to both his hands in an accident caused by the negligent driving of a vehicle, owned and driven by respondents 1 and 2 and insured with the 3rd respondent. The appellant filed OP (MV) No.120/2002 before the Motor Accidents Claims Tribunal, Kalpetta, seeking compensation for the injuries suffered by him. After finding negligence on the part of the driver of the vehicle and fixing the monthly income of the appellant as Rs.2,100/-, the Tribunal awarded compensation under various heads as follows : |**_Head_**|**_Amount_**| |---|---| |**_Loss of earning capacity_**<br>**_(2100 x 12 x 18 x 34/100)_**|**_Rs.1,54,224/-_**| |**_Loss of earnings_**|**_Rs.1,680/-_**| |**_Transport to hospital_**|**_Rs.2,000/-_**| |**_Extra nourishment_**|**_Rs.1,000/-_**| |**_Damage to clothing_**|**_Rs.350/-_**| |**_Bystander's expenses_**|**_Rs.500/-_**| MACA No.1054/07 2 |**_Head_**|**_Amount_**| |---|---| |**_Medical expenses_**|**_Rs.7,700/-_**| |**_Pain and sufferings_**|**_Rs.7,000/-_**| |**_Total_**|**_Rs.1,74,454/-_**| Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal, seeking enhanced compensation. 2. The contention raised by the learned counsel for the appellant is that the Tribunal had referred the appellant for medical examination by a Medical Board and the Medical Board, by Annexure C1 certificate, had opined that his physical disability is 34% and his occupational disability as a coolie, is 50%. But, the Tribunal has adopted only 34% disability, which is unreasonable, is the first contention. It is further contended that the appellant was a motor mechanic and the notional income of Rs.2,100/- fixed by the Tribunal is on the lower side. The appellant also claims increase in compensation for pain and sufferings and award of compensation for loss of amenities in life, for which, no amount has been awarded by the Tribunal. MACA No.1054/07 3 3. We have heard the learned counsel appearing for the Insurance Company also. 4. The appellant did not have a consistent claim regarding his occupation. Before the Tribunal, he claimed that he was a motor mechanic. But, from Annexure C(1) certificate, it is revealed that before the Medical Board, he stated that he is a coolie worker. The accident was on 8.12.2001. Taking into account the social conditions prevailing in 2001, we fix the monthly income of the appellant as Rs.2,500/- instead of Rs.2,100/-. Of course, Ext.C1 certificate certifies the appellant's physical disability as 34% and the occupational disability as a coolie worker, as 50%. But, in view of the inconsistency of the appellant regarding his occupation, we do not find anything wrong with the Tribunal, adopting only 34% disability for assessing the compensation for loss of earning power. But, since we have increased the monthly income of the appellant to Rs.2,500/-, the compensation for loss of earning capacity has to be recalculated. The Tribunal has adopted 18 as the multiplier. But, as per the decision in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC), the MACA No.1054/07 4 multiplier applicable to a 28 year old person is only 17. Calculated thus, the compensation for loss of earning capacity would be Rs.1,73,400/- (2500 x 12 x 17 x 34/100), instead of Rs.1,54,224/-. The appellant would get an additional compensation of Rs.19,176/under this head. ## 6. The appellant had suffered the following injuries : _1. Fracture shaft of Femur right_ _2. Fracture tibia right_ _3. Fracture both bone left fore arm_ _4. Fracture upper 3[rd] tibia left_ Taking into account these injuries, we are of the opinion that the appellant would not have been able to carry on his avocation for at least six months. Therefore, we are inclined to award loss of earnings for six months, amounting to Rs.15,000/- instead of Rs.1,680/- awarded by the Tribunal. The appellant would get an additional compensation of Rs.13,320/- under this head. Considering the injuries suffered by the appellant and his prolonged treatment, we are inclined to increase the compensation for pain and sufferings to Rs.20,000/- from Rs.7,000/-. The additional compensation under this head would come to Rs.13,000/-. Despite finding 34% disability, the Tribunal has not MACA No.1054/07 5 awarded any amount for loss of amenities in life. We fix Rs..25,000/- as compensation under this head. Adding together, the appellant would be entitled to Rs.70,496/- as additional compensation, over and above what has been awarded by the Tribunal. This amount would carry interest @ 9% per annum from the date of the claim petition till the date of payment. The third respondent Insurance Company is directed to deposit the said amount also within one month. With the above modification of the impugned award, the appeal is disposed of. ## **S.SIRI JAGAN, JUDGE** ## **K.RAMAKRISHNAN,JUDGE** sta MACA No.1054/07 6 MACA No.1054/07 7