Mary Krishnadas v. Sabari Enterprises Pvt. Ltd. and ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 MACA.No. 1450 of 2011() ----------------------OPMV.2151/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER ------------------------ MARY KRISHNADAS, DOCTOR, W/O.DR.KRISHNADAS, PUTHENVEETTIL HOUSE, CHERUPULASSERY, PALAKKAD DISTRICT. BY ADV. SRI.C.HARIKUMAR SMT.V.V.ASHA RESPONDENT(S): RESPONDENTS -------------------------- 1. THE MANAGING DIRECTOR, SABARI ENTERPRISES PVT.LTD.,717, IYYAKKARIZHIKAM, ASHRAMAM, P.O.KOLLAM, PIN 691 002. 2. DR.P.S.KRISHNADAS, S/O.SANKARAN EZHUTHASSAN, PUTHENVEETTIL HOUSE, (KPM HOSPITAL), CHERPULASSERY, PALAKKAD DISTRICT, PIN 679 503. 3. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, THAZHEPPALAM, TIRUR POST, MALAPPURAM DISTRICT, PIN 676 101. ADV. SRI. GEORGE CHERIAN THIRUVALLA (SC) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & V. CHITAMBARESH, JJ.** **------------------------------------------------M.A.C.A. No.1450 of 2011 ------------------------------------------------Dated this the 11[th] day of November, 2011** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. She, a Medical Practitioner, claimed compensation for personal injuries suffered by her in a motor accident which took place on 13/4/2003. She had suffered multiple injuries. There was minimally displaced fracture of greater tuberosity (left). There was fracture base of 3[rd] metatarsal and crack fracture of base of 4[th] metatarsal. She was treated by BK cast for left foot, strapping and arm sling for right shoulder and crepe bandage for haematoma on leg. She was an inpatient for two days. She continued her treatment as an outpatient thereafter. According to the appellant, she was earing an income of `20,000/- per mensem by her employment as a Medical Practitioner in private hospital. She was involuntarily unemployed for a long period of 5 months because of the accident i.e., 13/4/03 to 13/9/2003. She had allegedly suffered permanent disability as a result of the accident. Ext.A13 disability certificate issued by an ## **M.A.C.A. No.1450 of 2011** -: 2 :- Associate Professor Orthopaedics, Medical College, Kozhikode, stationed at Thrissur, revealed that she had suffered physical disability to the extent of 11%. The nature of the alleged disability is given in detail in Ext.13 disability certificate. 2. Against a total claim of `4,00,000/-, the Tribunal awarded a total amount of `35,000/- as per the details given in paragraph- 26 of the impugned award which we extract below: |**Sl.No.**|**Head of Claim**|**Amounts**<br>**awarded (Rs)**|**Basis vital details in a nut**<br>**shell**| |---|---|---|---| |1|Loss of earning (total)|7,500/-|(5000 x 1 ½| |2|Loss of earing (partial)|..|..| |3|Medical and Miscellaneous<br>expenses|250/-|| |4|Future treatment|..|| |5|By-stander's expenses|2,000/|-| |6|Transportation expenses|1,000/-|| |7|Extra nourishment|1,500/-|| |8|Damage to clothing etc.|500/-|| |9|Pain and suffering|15,000/-|| |10|Disability, Loss of earing<br>power, Loss of amenities,<br>Discomfort<br>and<br>inconveniences|7,200/-|2500 x 12 x 8 x 3/100| |Total<br>Rounded off to Rs.35,000/-||34,950/-|| 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is ## **M.A.C.A. No.1450 of 2011** -: 3 :- raised only against the quantum of compensation awarded. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the Tribunal erred grossly in reckoning the monthly income of the appellant at `5,000/-. She was a qualified Medical Practitioner from 1972. It was totally artificial and inadequate to assume that the monthly income to be `5,000/-, contends counsel. The Tribunal did not take into consideration the certificate Ext.A17 which showed that the monthly income was `20,000/-. 4. It is further contended that she was involuntarily unemployed because of the accident and consequent to the injuries for a long period of 5 months from 13/4/03 to 13/9/03. This is also certified in Ext.A17. 5. We have considered the submissions on this aspect. The Tribunal evidently was not persuaded to accept Ext.A17 and the medical documents which suggested that the appellant was involuntarily unemployed for a period of 5 months. Evidently that persuaded the Tribunal not to give any credence to the monthly income of the appellant which is also described in Ext.A17. 6. We are convinced that the non-employment for the ## **M.A.C.A. No.1450 of 2011** -: 4 :- period from 13/4/03 to 13/9/03 cannot be attributed to the nature of the injuries suffered by the appellant. For what reason she was unemployed during the long period of 5 months is not revealed to the court clearly. The Tribunal evidently became suspicious because of such assertions in Ext.A17. We are satisfied that it can safely be assumed, in the circumstances, that the appellant must have been involuntarily unemployed for a period of 1 ½ months as held by the Tribunal. However, we note that the Tribunal was not at all realistic in assuming `5,000/- to be the monthly earnings of a Medical Practitioner. The distrust to Ext.A17 was not unjustified. But, in any view of the matter, we are satisfied that `15,000/- can safely be assumed to be the monthly income of the appellant. The appellant/claimant can blame only herself for not placing better, more authentic and more convincing documents before the Tribunal. 7. It is next contended that the Tribunal erred in not accepting Ext.A13 certificate about the extent of physical disability while ascertaining the compensation for reduction in earning capacity. The author of Ext.A13 disability certificate was not examined. The appellant, a Medical Practitioner herself, did not think it necessary to get the extent of disability competently ## **M.A.C.A. No.1450 of 2011** -: 5 :- ascertained by a Medical Board. We have gone through the details available in Ext.A13. We are unable to agree that the appellant, who claims to be a Gynaecologist, would have suffered reduction in earning capacity to the extent of 11% because of the injuries suffered. The Tribunal has accepted 3% as the extent of disability. We are not persuaded to interfere with that finding recorded by the Tribunal. Here again, the appellant is to be blamed for not making any better data available to the Tribunal. 8. The Tribunal which had earlier held that `5,000/- can be reckoned as the monthly income for the purpose of ascertaining the loss of earning, surprisingly assumed only 2,500/- to be the monthly earnings while calculating reduction in earning capacity. We are satisfied that the same amount (`15,000/-) can be reckoned as monthly earnings while ascertaining the quantum of compensation for reduction in earning capacity. 9. Finally, the learned counsel for the appellant submits that the Tribunal went wrong in not awarding any amount under the head of loss of amenities. That some disability has resulted is evident from Ext.A12. The Tribunal accepted that the disability would have reduced the earning capacity by 3%. We have also accepted that conclusion of the Tribunal. The physical disability ## **M.A.C.A. No.1450 of 2011** -: 6 :- suffered would necessarily leave behind a reflection on the quality of enjoyment of life of the appellant. For such reduction in impairment in the quality of life, taking into account all dimensions of the loss resulting from such disability (other than reduction in earning capacity) we are satisfied that the appellant is entitled to be compensated adequately under the head of loss of amenities. We hold that `25,000- will be an adequate compensation under that head. 10. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of `76,000/- (Rupees seventy six thousand only) as compensation in addition to the amount already awarded by the Tribunal as per the details given below: |1.|Loss of earnings||| |---|---|---|---| ||(`15,000/- x 1.5 i.e., `22,500/-||| ||minus `7,500/-)|-|`15,000/-| |2.|Reduction in earning capacity||| ||(`15,000/- x 12 x 8 x 3/100 =||| ||`43,200/- minus `7,200/-)|-|`36,000/-| |3.|Loss of amenities||| ||(no amount awarded by||| ||the Tribunal)|-|`25,000/-| ||||-------------| ||Total|-|`76,000/-| ||||======| **M.A.C.A. No.1450 of 2011** -: 7 :- ## 11. In the result: (a) This appeal is allowed. (b) The appellant is found entitled to a further amount of `76,000/- (Rupees seventy six thousand only) as compensation 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 in the impugned order. (d) We make it clear that proportionate cost shall be worked out as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). (e) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge) Sd/V. CHITAMBARESH (Judge)** **Nan/** **//true copy// P.S. to Judge** # **M.A.C.A. No.1450 of 2011** -: 8 :-