N. C. Prasad v. Ladu Naik and others (MACA No. 591 of 2007)

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. 591 of 2007() ---------------------OPMV.711/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): - -------------- N.C.PRASAD, S/O.CHAKKUNJI, NEDUMPULLIL HOUSE, PONJANAM P.O.,KATTOR, THRISSUR. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): - --------------- 1. LADU NAIK , S/O.SUDO NAIK, C/O.HERO 695,SHRODA PONDA, GOA. 2. M/S.TALAULIKAL ELECTRICAL,NEAR CINI LATA,MARGO,GOA. 3. THE ORIENTIAL INSURANCE CO.LTD, GAFOOR BUILDING, 2ND FLOOR STATION ROAD, SANVORDEM, CURCHORMEM,GOA. 4. L.M.MOHAMMED ASHRAFF, S/O.ABDULLA, CHUNYAR MANZIL, HOUSE NO.64/230,POONNOOR, UNNIKULAM,CLAICUT DISTRICT. 5. NATIONAL INSURANCE CO.LTD, BRANCH OFFICE, KORAMBAYIL ARCADE, PANDIKKOD ROAD, MANJERI. BY ADV. SRI.P.JAYASANKAR FOR R5 BY ADV. SRI.P.JACOB MATHEW, SENIOR ADVOCATE FOR R3 BY ADV. SRI.JOHN JOSEPH VETTIKKAD. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- **M.A.C.A.No.591 of 2007** ------------------------------- **Dated this the 11[th] day of November, 2011** ## **J U D G M E N T** ## Basant, J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 10.4.1997. He had suffered multiple injuries including multiple fractures. He was an inpatient for a total period of 39 days in 3 spells. He suffered segmental fracture left femur, fracture mandible, fracture maxilla and multiple abrasions left forehead and left shoulder. He had allegedly suffered permanent disability. His permanent disability was assessed at 30% by the medical officer. This was certified in Ext.A12 disability certificate. The author of the disability certificate was examined as PW.12. The claimant claimed to be employed as a motor mechanic. According to him, he was getting an income of Rs.125/- per day. In support of this assertion, Ext.A9 employment certificate was also produced. 2. Against a total claim of Rs.2,50,000/-, the Tribunal by the impugned award directed payment of the total amount of Rs.81,978/- as per the details given which we extract below:- M.A.C.A.No.591 of 2007 2 |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_awarded (Rs.)_**| |---|---|---| |1|Loss of earning (1500 x 3)|4500| |2|Transport to hospital|2000| |3|Extra nourishment and wages to attendants(26 x 100)|2600| |4|Damages to clothing|NIL| |5|Medical bills|27278| |6|Pain and sufferings|10000| |7|Loss of amenities|5000| |8|Permanent disability (1500 x 12 x 17 x 10/100)|30600| ||**TOTAL**|**81978**| The fifth respondent insurance company was made entirely liable to the impugned award. 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded by the Tribunal. 4. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the Tribunal had erred grossly in reckoning the monthly income as Rs.1500/- The accident had taken place on 10.4.1997. The appellant was aged 24 years on the date of the accident. An employment certificate was also produced. The Tribunal did not think it proper to accept the employment certificate as such. Even in that event, the Tribunal must M.A.C.A.No.591 of 2007 3 have drawn reasonable and prudent inferences, contends counsel for the appellant. Clause 6 of II schedule permits drawal of a presumption of prudence as early as in 1994 that even a non-earning person can safely be assumed to earn an income of Rs.15,000/- per annum. The appellant was a young man aged 24 years. He had started earning as a motor mechanic. We are, in these circumstances, persuaded to agree that Rs.2500/- can safely be assumed to be his monthly earnings at the time of the accident and Rs.3000/- can be reckoned as the multiplicand while ascertaining the quantum of compensation for reduction in earning capacity. The amount of compensation under those heads will have to be re-worked on the basis of the above input. 5. It is then contended that though the appellant was an inpatient for a period of 39 days in 3 spells, only an amount of Rs.2600/- has been awarded under the composite head of extra nourishment and wages of attendants, counsel argues and we agree that compensation under each of those heads can safely be awarded at the rate of Rs.100/- per day for the entire period of hospitalisation (39 days). 6. The learned counsel for the appellant contends that the Tribunal had arbitrarily slashed down the percentage of reduction in M.A.C.A.No.591 of 2007 4 earning capacity from 30% as certified in Ext.A12 disability certificate to 10%. The appellant had examined the author of the certificate as PW.2. PW.2 in Ext.A12 had certified and had asserted before court that 30% is the extent of physical disability. The learned counsel for the appellant argues that even taking note of the gap between physical disability and reduction in earning capacity, it was too unrealistic to reckon the extent of reduction in earning capacity at 10%. We have gone through Ext.A12. Considering the nature of the physical disability certified in Ext.A12, we find it safe to come to the conclusion that that physical disability must have resulted in reduction in earning capacity to an extent of at least 15%. That input can also be accepted while ascertaining the compensation for reduction in earning capacity. 7. For loss of amenities, only an amount of Rs.5000/- has been awarded. The nature of the disability can be ascertained from Ext.A12. Such disability suffered by the claimant is bound to leave behind two fold reflections on his life. It reduces the earning capacity. It also reduces the quality of enjoyment of life which the appellant can aspire to lead after the accident for the entire rest of his life. Considering the nature of injuries, we note that disfiguration must also have resulted. M.A.C.A.No.591 of 2007 5 8. Taking all the dimensions of the disability other than the reduction in earning capacity, we are satisfied that the quantum of compensation under the head of loss of amenities can be fixed at Rs.20,000/-. 9. The learned counsel for the appellant submits that under the head of pain and suffering notwithstanding the serious injuries suffered and the long period of treatment as an inpatient and later as an outpatient, higher amount of compensation has to be awarded. The Tribunal has awarded only an amount of Rs.10,000/under this head. We agree that the amount of compensation under the head pain and sufferings can be enhanced to Rs.15,000/-. 10. We are not persuaded to interfere with the quantum of compensation awarded under any other heads. 11. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.89,400/- as compensation as shown below in addition to the amount amount awarded by the Tribunal. 1. Loss of Earnings (2500 x 3 = 7500 minus 4500) Rs. 3,000.00 2. Extra nourishment and Bystander's expenses (39 x 200 = 7800 minus 2600) Rs. 5,200.00 M.A.C.A.No.591 of 2007 6 3. Pain and sufferings (15,000 minus 10,000) Rs. 5,000.00 4. Loss of amenities (20,000 minus 5000) Rs.15,000.00 5. Reduction in Earning capacity (3000 x 12 x 17 x 15/100 = 91,800 minus 30, 600) Rs.61,200.00 ## **TOTAL** **Rs.89,400.00** 12. The learned counsel for the appellant points out that interest has been awarded only at the rate of 6% per annum. Counsel submits that interest must have been awarded at a higher rate. We agree with the learned counsel. Proportionate costs before the Tribunal also deserves to be awarded on the entire amount of compensation. ## - 13. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.89,400/- (Rupees eighty nine thousand four hundred and sixty only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of M.A.C.A.No.591 of 2007 7 compensation shall carry interest at the rate and for the period as directed by the Tribunal. The interest shall not however be payable on the enhanced amount of compensation for the period of 427 days, i.e., the period of delay in filing an appeal. d) The proportionate cost for the proceedings before the Tribunal shall be awarded on the entire of amount of compensation calculated as per the dictum in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.** ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- **C.M.Appln. No.629 of 2007 in M.A.C.A.No.591 of 2007** ------------------------------- **Dated this the 11[th] day of November, 2011** ## **O R D E R** ## Basant, J. This petition is to condone the delay of 427 days in filing the appeal. Heard the learned counsel for the appellant and the learned counsel for the respondent No.5 which has been made entirely liable under the impugned award to satisfy the award. We take a lenient view. Petition allowed and delay condoned on condition that the appellant shall not be entitled to any interest on the enhanced amount of compensation, if any, for the period of 427 days, the period of delay. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.**