M.A.C.A. No. 531 of 2007

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 MACA.No. 531 of 2007() ---------------------OPMV.189/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): PETITIONER/APPELLANT/CLAIMANT ------------------------------------------- K.VELAYUDHAN, S/O.UNNERI, KALPAKASSERY(H), CHOORAPOYIL, P.O.PUNNAPLLA, MALAPPURAM(DT). BY ADV. SRI.T.K.AJITH KUMAR RESPONDENT(S): RESPONDENTS/RESPONDENTS -------------------------------------- 1. K.NOUSHAD @ NOUSHADALI, S/O.KNHIMOHAMMED, KALLINGAL (H), P.O.PUNNAPPLA, MALAPPURAM (DT) (DRIVER). 2. K.ABDUL NAZAR, S/O.AHAMMEDKUTTY, KARAKKADAN HOUSE, P.O.NELLIKKUTH, MANJERI, MALAPURAM (DT) (R.C.OWNER). 3. NATIONAL INSURANCE CO., LTD., MANJERI, MALAPPURAM (DT),(INSURER). 4. K.JISHOR, S/O.VELAYUDHAN, KALPAKASSERY (H), CHOORAPOYIL, P.O.PUNNAPPLA, MALAPPURAM (DT),(OWNER). 5. NEW INDIA ASSURANCE CO.LTD., MANJERI, MALAPPURAM (DT) (INSURER), - (R.C.OWNER). ADV. SRI.LAL GEORGE FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No. 531 of 2007 ------------------------------------------------Dated this the 26[th] day of September, 2011** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 14/10/1999. He had suffered multiple injuries including cranial fractures. There was optic nerve injury also. He was an inpatient for 11 days. He had allegedly suffered permanent physical disability. Against a total claim of `3,00,000/-, the Tribunal assessed the total loss to be `44,889/- as per the details given in paragraph-7 of the impugned award which we extract below: |“Transport to hospital|-|Rs. 500.00| |---|---|---| |Extra nourishment and||| |bystander's expenses|-|Rs. 1,100.00| |Medical bills|-|Rs.28,039.00| |Damage to clothing|-|Rs. 250.00| |Pain and suffering|-|Rs.10,000.00| |For disfigurement|-|Rs. 5,000.00| |||------------------| |Total|-|Rs.44,889.00| |||========”| ## **M.A.C.A. No. 531 of 2007** -: 2 :- 2. The Tribunal found that the appellant was responsible to the extent of 50% for the loss. Accordingly, the Tribunal directed payment of an amount of `22,445/- along with interest at the rate of 6% per annum and `500/- as costs. 3. We have heard the learned counsel for the appellant and the learned counsel for the 5[th] respondent. There is no representation for other respondents, though served. 4. The learned counsel for the appellant assails the impugned award on two grounds. First of all, it is contended that the Tribunal had erred in coming to the conclusion that the appellant was responsible to the extent of 50% for the loss suffered. There was no contributory negligence at all on the part of the appellant/rider of the motor-cycle and the driver of the insured vehicle was entirely responsible for the accident, contends the learned counsel for the appellant. 5. On the question of negligence, no oral evidence has been adduced. Exts.A6 and B1 are the charge sheets filed by the police after due investigation. They show that the drivers of both the vehicles were culpably negligent and the accident was as a result of such negligence. Even though the appellant argues that the driver of the other vehicle was entirely responsible for the accident, no material whatsoever has been produced before the ## **M.A.C.A. No. 531 of 2007** -: 3 :- Tribunal. In these circumstances, we are satisfied that the conclusion of the Tribunal that both the drivers must be held to be equally responsible for the accident cannot be faulted. The challenge on that ground must hence fail. 6. We now come to the question of quantum of compensation. The learned counsel for the appellant assails the quantum of compensation on various grounds. Called up to explain and be specific the learned counsel for the appellant, first of all, submits that no compensation has been awarded under the head of loss of earnings. Cranial fractures have been suffered. The appellant was an inpatient for a period of 11 days. In these circumstances, even in the absence of any better evidence, the Tribunal ought to have found that the appellant has suffered loss of earnings. The appellant was employed as U.D. Clerk in the Grama Panchayat and the salary certificate issued by the authorities produced as Ext.A3 shows that the appellant was getting a gross salary of `4,914/- as pay and Dearness Allowance. Leave records have not been produced. But even in the absence of any better evidence, we find it safe to assume that the appellant must have been involuntarily unemployed for a period of 45 days as a result of the accident. If the appellant was so disabled for a longer period, certainly the appellant must have ## **M.A.C.A. No. 531 of 2007** -: 4 :- produced necessary documents showing the period of leave that he had availed. We do not non-suit him completely for the reason that no documents have been produced. We assume that there must have been loss of earnings/loss of leave for a period of 45 days as a result of the accident. Consequently, he will be entitled to an amount of `7,371/-(`4914/- x 1.5) as compensation under that head. 7. The learned counsel for the appellant next contends that the appellant had suffered permanent partial disability as a result of the accident. He had completely loss eye sight of one eye. At the request of the appellant, this Court had referred him to a Medical Board and the District Medical Board at the Government General Hospital, Manjeri, has, after examination of the appellant, reported that he has suffered disability to the tune of 30%. He has no perception of light on the right eye, it is reported. The report of the District Medical Board is consistent with Entry-26 in Part II of the Schedule I of the Workmen's Compensation Act. We are of the opinion that the said report can safely be accepted. 8. The appellant is employed in a Government service. There is no contention that there is any present reduction in earnings consequent to the physical disability suffered by him. The appellant has therefore not suffered any reduction in earnings ## **M.A.C.A. No. 531 of 2007** -: 5 :- till the expected date of superannuation i.e., on the attainment of the age of 55 years. However, we find merit in the submission that his reduction in earning capacity will have a direct impact on his earnings for the post retiral period. Following the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], 9 is the multiplier to be adopted for persons of the age group of 55 to 60. We deem it reasonable to assume that his monthly earnings for the post retiral period would be `3,000/-. In coming to this conclusion, we take note of the presumption of prudence under Clause (6) of the II Schedule to the Motor Vehicles Act. We also take note of the decisions in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi v. Mohammad Tabbar** (2008 ACJ 1488). We are satisfied that an appropriate amount of compensation, adopting the multiplier-multiplicand method, can be awarded to the appellant. 9. Physical disability suffered by a person leaves behind two fold reflections in life. It reduces the earning capacity. It also impairs the quality of enjoyment which the person can afford to lead thereafter. Compensation is certainly bound to be awarded. Only an amount of `5,000/- has been awarded towards disfiguration by the Tribunal. This disability - loss vision ## **M.A.C.A. No. 531 of 2007** -: 6 :- of one eye will precipitate disabilities, inconveniences, discomfiture etc. The trauma suffered would shorten and reduce the life expectancy. To do work which the appellant was able to perform without disability, the appellant will now have to put in harder efforts. All these dimensions taken into account, we are satisfied that a further amount of `25,000/- can be awarded as compensation for loss of amenities. 10. We are not satisfied that the amount awarded under any other head deserves or warrants interference. 11. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `64,785/- (Rupees sixty four thousand seven hundred and eighty five only) in addition to the amount already awarded by the Tribunal being half of the total further amount due: |1.|Loss of earnings||| |---|---|---|---| ||(`4,914/- x 1.5)|-|`7,371/-| |2.|Reduction in earning||| ||capacity (`3,000/- x 12 x||| ||9 x 30/100)|-|`97,200/-| |3.|Loss of amenities|-|`25,000/-| ||||----------------| ||Total|-|`1,29,571/-| ||Half|-|`64,785/-| ||||=======| 12. Interest has been awarded by the Tribunal at the rate of 6% per annum. The learned counsel for the appellant argues ## **M.A.C.A. No. 531 of 2007** -: 7 :- and we agree that interest deserves to be awarded at the rate of 7.5% per annum. ## 13. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `64,785/- (Rupees sixty four thousand seven hundred and eighty five only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation payable shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/ realisation. (d) 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. 531 of 2007** -: 8 :-