Maria Arputham v. V.C. Thomas, Ramachandran, National Insurance Company Ltd.

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 17TH OCTOBER 2011 / 25TH ASWINA 1933 MACA.No. 2943 of 2008() ----------------------OPMV.503/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... ## APPELLANT/PETITIONER ------------------------ MARIA ARPUTHAM, PALLAVILAI VEEDU, THALAKKULAM POST, KANYAKUMARI DISTRICT, TAMILNADU - 629 802, NOW RESIDING AT C/O.AREEKAL MADHAVI, AIKYA NAGAR, NADATHARA P.O., THRISSUR DISTRICT. BY ADV. SRI.M.B.PRAJITH RESPONDENTS/RESPONDENTS --------------- 1. V.C.THOMAS, KALAKKASSERY HOUSE, CHUNDAKKUZHI P.O., ERNAKULAM DISTRICT. 2. RAMACHANDRAN, S/O.PADMANABHAN NAIR, PUTHIYEDATHU HOUSE, KALARIKKAL, KADANADU DESOM, ERNAKULAM DISTRICT. 3. NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, KOILLANNUR DEVASSY BUILDING, NEAR SWAPNA THEATRE, ROUND EAST, THRISSUR. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.2943 of 2008 ---------------------------------------Dated this the 17[th] day of October 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for the personal injuries suffered by him in a motor accident which took place on 15/2/1999. He had suffered serious injuries as a result of the accident. An L-shape iron bar had pierced through and made a penetrating injury in his body. There is entry wound at the front and exit wound at the rear. The L-shape iron bar has measurement 6 x 6 cms with 1 cm thickness. Fracture of the pubic bone right and fracture of the right side of sacrum has resulted. Urinary bladder was completely damaged. He continued as an in-patient for a total period of 37 days in different spells. He had suffered permanent disability. He produced Ext.A16 medical disability certificate issued by the Assistant Professor of Orthopedic, Medical College Hospital, Thrissur which gave in detail the nature of the physical disability suffered by him and the assessment of extent of physical disability. The doctor opined that the appellant has suffered 2 M.A.C.A No.2943 of 2008 physical disability to the tune of 78%. Inter alia, he had no control over bladder and bowel movements. There was sexual impotency also in addition to other consequences. 2. Against a total claim of Rs.12,85,000/-, the tribunal awarded only an amount of Rs.2,77,100/- as per the details given in paragraph 11 of the impugned award which we extract below: |**_Sl.No._**|**_Head_**|**_Amount (Rs.)_**| |---|---|---| |1.|Loss of earning|22,000/- (11 x 2000)| |2.|Expenses for transportation|5,000/-| |3.|Expense for extra nourishment|5,000/-| |4.|Damages to clothing|500/-| |5.|Expense for treatment|16,600/-| |6.|Expense for bystander|4,000/-| |7.|Compensation for pain and suffering|30,000/-| |8.|Compensation for loss of amenities|10,000/-| |9.|Compensation for disability|1,80,000/- (2,000/- x 12 x<br>15 x 50/100)| |10.|Expense for future treatment|4,000/-| ||Total|**2,77,100/-**| 3. Insurance company was made entirely liable under the impugned award. The appellant claims to be aggrieved by the impugned award. The short plank of challenge is that the quantum of compensation awarded is not adequate. 4. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the monthly 3 M.A.C.A No.2943 of 2008 income of the appellant reckoned by the tribunal at Rs.2,000/- is too inadequate. He was an able bodied person aged 42 years. He was employed as a coolie. The tribunal totally erred in reckoning only Rs.2,000/- as the monthly income. Rs.3,000/- was claimed to be the monthly income. No better evidence was produced. 5. Heard both sides. We take note of the presumption of prudence under clause 6 of the second schedule to the Motor Vehicles Act from 1994. We also take note of the decisions in **Lata Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** and **Laxmi Devi v. Mohammad Tabbar [2008 ACJ 1488]** . We are satisfied that the appellant can safely be assumed to earn an income of Rs.2,500/- at the relevant time. 6. The learned counsel for the appellant next contends that the tribunal had erred grossly in reckoning only 50% as the extent of disability when the certificate issued clearly shows that his disability is to the tune of 78%. The nature of the disability is given in detail in the certificate and the tribunal was not justified in taking the view that the disability was not 78%; but was only 50%. In the nature of the details available in the medical 4 M.A.C.A No.2943 of 2008 disability certificate issued by the doctor at the Medical College Hospital, we are certainly satisfied that the tribunal had erred in not accepting the extent of disability certified in Ext.A16. We note that the urinary bladder has been damaged completely and that no voluntary control of bladder and bowel in addition to sexual impotency has resulted as a consequence of the accident. We are, in these circumstances, satisfied that 78% as certified in Ext.A16 should have been accepted by the tribunal as the extent of physical disability and the consequent reduction in earning capacity. 7. The learned counsel for the appellant then contends that the tribunal erred in awarding only an amount of Rs.10,000/- as compensation for loss of amenities. Physical disability suffered by a person leaves behind two fold reflections on the life of such individual. It reduces the earning capacity for which compensation is calculated by adopting multipliermultiplicand method. It also reduces and impairs the quality of enjoyment of life which the victim can afford to aspire during the entire rest of his life. We are satisfied, in the circumstances of the case, award of an amount of Rs.10,000/- under the head of 5 M.A.C.A No.2943 of 2008 loss of amenities is not sufficient. We are satisfied that Rs.35,000/- can be fixed as the quantum of compensation under the head of loss of amenities. 8. We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. We further clarify that proportionate cost awarded by the tribunal shall be calculated as per the decision in J **eena v. Satheesh Babu.K [2011(3) KLT 943].** The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.2,01,500/- as compensation in addition to the amount awarded by the tribunal. i) Loss of earnings Rs.5,500/[Rs.27,500/- (Rs.2,500/- x 11) minus Rs.22,000/-) ii) Reduction in earning capacity Rs.1,71,000/[Rs.3,51,000/- (Rs.2,500/- x 12 x 15 x 78/100) minus Rs.1,80,000] iii) Compensation for loss of amenities Rs.25,000/(Rs.35,000/- minus Rs.10,000/-) ---------------------Total **Rs.2,01,500/-** ========= 9. In the result, a) This appeal is allowed in part. 6 M.A.C.A No.2943 of 2008 b) Appellant is found entitled to a further amount of Rs.2,01,500/- (Rupees two lakhs one thousand five hundred only) in addition to the amount already awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the tribunal. Of course, no interest shall be payable for the enhanced amount for the period of 389 days - that is the period of delay in filing the appeal as already directed in the order condoning the delay in filing the appeal. d) Proportionate cost before the tribunal shall be paid as per the decision in **Jeena** (Supra). e) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A No.2943 of 2008 7 8 M.A.C.A No.2943 of 2008 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010