MACA No. 415 of 2011 (A) and Cross Objection No. 66 of 2011 (New India Assurance Co. Ltd. v. Sreeja Sreedharan)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 MACA.No. 415 of 2011(A) ---------------------OPMV.796/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT : 3RD RESPONDENT ---------------------------- NEW INDIA ASSURANCE COMPANY LTD., SHAFEER COMPLEX, OPPOSITE YMCA, KANNUR ROAD, CALICUT. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT : CLAIMANT ----------------------- SREEJA SREEDHARAN, W/O. CHANDRAN, AGED 30/2007, NANDANAM HOUSE, THOTTASSERIARA, POST KANNAMANGALAM WES,T VIA. A.R.NAGAR, MALAPPURAM DISTRICT. ADV. SRI.K.M.SATHYANATHA MENON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011, ALONG WITH CO NO.66 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & K.SURENDRA MOHAN, JJ. ************************* ## **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011 ******************************* Dated this the 6[th] day of September, 2011 ## **JUDGMENT** ## BASANT, J. Insurance company is the appellant. The claimant, a young woman, aged about 30 years claimed compensation for personal injuries suffered in a motor accident which took place on 09.02.2007. She had suffered serious multiple injuries, including fractures. She was an inpatient for a period of 104 days. She had suffered permanent disability as a result of the accident. The extent of physical disability was evaluated and assessed at 78% by the Medical Board at the Medical College Hospital, Calicut. One of the signatories to the document was examined as CW1. Against a total claim of Rs.14 lakhs, the Tribunal, awarded an amount of Rs.8,12,130/0 as compensation as per the details given in para.13 of the impugned award, which we extract below: |**_Sl.No._**|**_Heads of award_**|**_Amount_**<br>**_awarded_**|**_Basis-vital details in a nut_**<br>**_shell_**| |---|---|---|---| |1|Loss of earning|Rs.27,000/-|Rs.9,000X3 months| 2 ## **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011** |**_Sl.No._**|**_Heads of award_**|**_Amount_**<br>**_awarded_**|**_Basis-vital details in a nut_**<br>**_shell_**| |---|---|---|---| |2|Medical and miscellaneous<br>expenses|Rs.1,63,030/-|Rs.1,63,030/- (acceptable<br>bills for Rs.1,63,030.29<br>produced)| |3|Bystander expenses|Rs. 20,800/-|Rs.200X104 days 1 person| |4|Transportation expenses|Rs. 10,000/-|Rs.10,000/- (Bills for<br>Rs.18,085/- produced)| |5|Damage to clothing|Rs. 500/-|Rs.500/-| |6|Pain and suffering|Rs. 30,000/-|Rs.30,000/-major fractures<br>suffered. Inpatient for 104<br>days surgical procedures<br>undergone| |7|Loss/Reduction in earning<br>capacity|Rs.5,50,800/-|Rs.9,000X12X30/100X17| |8|Loss of amenities and<br>conveniences|Rs. 10,000/-|| ||Total|Rs.8,12,130/-|Rs.8,12,10/- with interest<br>@ 7.5% per annum from<br>10.09.07 till realisation.| 2. We have heard the learned counsel for the insurance company/appellant and the learned counsel for the respondent/cross objector. Dispute raised is only about the quantum of compensation payable. The learned counsel for the appellant/insurance company assails the impugned award only on one ground. The learned counsel contends that the amount of compensation awarded under the head of loss/reduction in earning capacity (5,50,800/-) is perversely excessive. 3. The Medical Board had assessed the disability to be **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011** 3 78%. The Tribunal accepted only 30% as the disability. We have been taken through the details of the alleged disability available in Ext.C1. We have gone through the relevant discussions in the impugned award about the extent of disability. We must say that the contents of Ext.C1 and the oral evidence of CW1 are far from satisfactory. The precise process of reasoning by which the physical disability was assessed at 78% is not revealed in detail either from Ext.C1 or from the oral evidence of CW1. Assistance can be had from the Macbride Scale as also from the scheduled injuries in Schedule-1 of the Employees Compensation Act. Taking all the relevant circumstances into account, we are satisfied that the assessment of physical disability in Ext.C1 is far from satisfactory. 4. We have photographs Ext.A9 series suggesting the nature of disability suffered. Disability is suffered on the right hand of the claimant. We are of the opinion that the Tribunal was eminently justified in reckoning the physical disability and the consequent reduction of earnings to be 30%. Right forearm of the appellant is deformed, which can be very safely inferred from Ext.A9 series of photographs. Notwithstanding the **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011** 4 challenge raised by the claimant/cross objector, we are satisfied that the finding of the court below that 30% disability and reduction in earnings to identical extent must have been suffered by the claimant can be safely accepted. 5. The learned counsel for the insurance company contends that it is the admitted case of the claimant that she continues to be employed as a teacher. There is no reduction in the earnings of the claimant. In fact, the evidence suggests that there has actually been an increase in the earnings as the claimant was able to secure better employment after she sustained the injuries. We find merit in the contention that there is no immediate prospect of any reduction in earnings because of the physical disability suffered. However, it would be myopic for a Court not to visualise the difficulties of the claimant to perform her duties as a teacher with the deformed right forearm. To turn out the same amount of work with lesser physical ability/ efficiency, she will have to strain harder. She will certainly have to avail more leave/rest when she attempts to turn out the same amount of work with the physical disability suffered by her. However, the fact remains that she has not at present suffered **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011** 5 any actual reduction in earnings. In these circumstances, we agree with the learned counsel for the insurance company that the computation of reduction in earning capacity by employing multiplier-multiplicand method and fixing the compensation for reduction in earning capacity at 5,50,800/(9000X12X30/100X17) is not fair and reasonable. 6. Certainly the claimant will have to suffer reduction in earnings after her present employment comes to an end at the age of 55 years. For such prospective reduction in earnings, certainly an appropriate amount of compensation deserves to be awarded. For persons of the age group above 55 years upto 60 years, 9 is the multiplier recognised by **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121]. During such post retiral employment, we feel it would be absolutely safe to assume that the appellant would be in a position to earn an amount of Rs.4,000/- a month. In coming to this conclusion, we do take note of the decision in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] and **Laxmi Devi & Ors. V. Mohammad Tabbar & Anr.** [2008 ACJ 1488]. We take note of her present earnings. We are of the opinion that accepting Rs.4,000/- as the **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011** 6 monthly income would be absolutely fair, reasonable and just for such post retiral engagement which the claimant may secure. 7. Such reduction in physical ability will also reduce and impair the quality of enjoyment of life of the claimant. Ext.A9 series of photographs reveal the impact of the disability suffered by a young woman aged 30 years like the appellant. She will have to suffer the disability and the consequent impairment/reduction in the quality of life for the rest of her life. We are certainly of the opinion that for all dimensions of the physical disability suffered and the consequent reduction in the ability to enjoy life, the claimant is entitled to be compensated. An appropriate amount of compensation can be fixed for the harder efforts which the deceased will have to put in to turn out the same amount of work and for the requirement of more leave and rest for the appellant. Such amount must also take into account realistically inability of the appellant to attend to domestic chores as before. Considering the nature and extent of the disability and the period during which the claimant will have to endure the disability, we are satisfied that an amount of Rs.1 lakh can be awarded as compensation under the head of loss of **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011** 7 amenities. This includes all reduction/impairment in the quality of life as a result of the physical disability suffered including difficulties, disablement, discomfiture etc. suffered as also shortened expectation of life and the deformity suffered on account of the disability by the young woman claimant. 8. The learned counsel for the Cross Objector/claimant submits that compensation awarded under the head of loss of earnings is inadequate. The appellant was an inpatient for 104 days. She was involuntarily unemployed for a much longer period. We are satisfied that compensation can be awarded for loss of earnings for a period of 6 months. No amount of compensation has been awarded for extra nourishment. We are satisfied that Rs.5,000/- can be awarded as compensation under that head. 9. The above discussions lead us to the conclusion that the compensation awarded by the Tribunal will have to be appropriately modified and reduced. The appellant will hence be entitled to an amount of Rs.5,13,430/- as compensation as per the details shown below: 8 ## **M.A.C.A No.415 of 2011-A and Cross Objection No.66 of 2011** |**_Sl._**<br>**_No._**|**_Heads of award_**|**_Amount_**<br>**_awarded_**|**_Basis in a nut shell_**| |---|---|---|---| |1|Loss of earnings|Rs. 54,000.00<br>(9000X6months)|Rs.27,000/- awarded by the<br>Tribunal.| |2|Damage to clothing and articles|Rs. 1,000.00|Rs.500/- awarded by the<br>Tribunal| |3|Pain and suffering|Rs. 30,000.00|As awarded by the Tribunal| |4|Medical <br>and miscellaneous<br>expenses|Rs. 1,63,030.00|As awarded by the Tribunal| |5|Bystander's expenses|Rs. 20,800.00|As awarded by the Tribunal| |6|Transportation expenses|Rs. 10,000.00|As awarded by the Tribunal| |7|Extra nourishment|Rs. 5,000.00|No amount awarded by the<br>Tribunal| |8|Loss/reduction in earning capacity|Rs. 1,29,600.00<br>(4000 X 12 X 9<br>X 30/100)|Rs.5,50,800/- awarded by<br>the Tribunal| |9|Loss of amenities|Rs. 1,00,000.00|Only 10,000/- awarded by<br>the Tribunal| ||**Total**|**Rs. 5,13,430.00**|| 10. The appellant will consequently be entitled only to an amount of Rs.5,13,430/- as compensation from the respondents. 10. In the result: a) This M.A.C.A and the Cross Objection are allowed in part; b) The appellant is found entitled only for an amount of Rs.5,13,430/- (Rupees Five lakhs thirteen thousand four hundred and thirty only) in supersession of the direction issued by the Tribunal in the impugned award along with interest at the rate of ## **M.A.C.A No.415 of 2011-A and** **Cross Objection No.66 of 2011** 9 7.5% per annum from the date of the claim to the date of realisation and proportionate costs as directed in the decision reported in **Jeena v. Satheesh Babu.K** [2011(3) KLT 943]; c) All other directions of the Tribunal are upheld; **(R.BASANT, JUDGE)** **==> picture [255 x 14] intentionally omitted <==** rtr/