NOUFER M v. M/S The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **& THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** **FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933** **MACA.No. 878 of 2010()** **---------------------------OPMV.347/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** **....................** **APPELLANT(S): PETITIONER** **---------------------------------** **NOUFER.M,AGED 29 YEARS,S/O.MYTHEEN, KODIYIL PURAYIDOM,HOUSE NO.8,A1-AMEEN NAGAR, PALLITHOTTOM,KOLLAM.** **BY ADV. SRI. K.SIJU** **RESPONDENT(S): 3RD RESPONDENT** **------------------------------------------** **M/S.THE ORIENTAL INSURANCE CO.LTD, DIVISIONAL OFFICE,P.B.NO.228,LIC BUILDING, KOLLAM.** **R1 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.878 of 2010 ---------------------------------------Dated this the 30[th] day of September 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 06/12/2003. The claimant was a construction worker aged about 23 years on the date of the accident. He claimed that his monthly income was Rs.2,750/- He had suffered grievous injuries as a result of the accident. There was fracture of shaft of right femur with crush injury of the third toe. He was an inpatient for a total period of 63 days in five different spells. The date of first hospitalisation was 06/12/2003, the date of the accident whereas the date of last discharge (after the 5[th] spell) was on 19/01/2005. He had allegedly suffered permanent disability as revealed in Ext.A14 disability certificate which gives the details of the nature of the disability (including amputation of the third toe on the right side at the metacarpophalangeal level). The disability was assessed to be 14%. 2. The tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant is 2 M.A.C.A.No.878 of 2010 entitled to a total amount of Rs.1,65,400/- as compensation as per the details given in paragraph 12 of the impugned award which we extract below: ||Part-I|| |---|---|---| |(a)|Loss of earning for 6 months|Rs.12,000/- (6 x 2000)| |(b)|Partial loss of earning|Nil| |(c)|Transport to the Hospital|Rs.2,000/-| |(d)|Extra nourishment|Rs.2,000/-| |(e)|Damage to clothing and articles|Rs.500/-| |(f)|Others - Bystander expenses|Rs.5,300/-| |(g)|Medical expenses|Rs.56,476/-| ||Part-II|| |(h)|Compensation for pain and suffering|Rs.20,000/-| |(i)|Compensation for continuing for permanent<br>disability (Rs.2000 x 12 x 17x 14/100)|Rs.57,120/-| |(j)|Compensation for the loss of amenities in life|Rs.10,000/-| ||Total|Rs.1,65,396/- rounded as<br>Rs.1,65,400/- (Rupees one<br>lakh sixty five thousand and<br>four hundred only)| 3. Before us, the learned counsel for the appellant/claimant and the 1[st] respondent/insurance company have advanced their arguments. The learned counsel for the appellant assails the impugned award on the short ground that the quantum of compensation awarded is not adequate. 4. Called upon to explain and be specific, the learned counsel for the appellant submits that the monthly income 3 M.A.C.A.No.878 of 2010 reckoned by the tribunal to calculate compensation for loss of earnings as well as loss of earning capacity is too low. The tribunal reckoned only Rs.2,000/- as the monthly income. Even according to the appellant, his monthly income as a construction worker was only Rs.2,750/-. We are of the opinion that even in the absence of any better evidence, the same must have been readily accepted by the tribunal to ascertain the quantum of compensation for loss of earnings. While computing the compensation for reduction in earning capacity, we are of the opinion that an appropriately higher multiplicand must have been adopted. The appellant is a person aged 23 years. 18 is the multiplier relevant to his age group as indicated in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** . It is only reasonable to assume that his wages must have increased even though he is not shown to be in any settled and stable employment. We are, at any rate, satisfied for the purpose of ascertaining the monthly earnings to compute the quantum of compensation for reduction in earning capacity, an amount of Rs.3,250/- can be reckoned as his monthly income. In coming to this conclusion, we take note of the presumption of prudence available under clause 6 of the second schedule of the M.V.Act from 1994. We also take note of the decisions 4 M.A.C.A.No.878 of 2010 of the Supreme Court in **Lata Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** and **Laxmi Devi v. Mohammad Tabbar [2008 ACJ 1488]** which permit tribunals to assume even in the absence of any better evidence that a nonearning home maker as also an unskilled manual worker can safely be assumed to earn an income of Rs.3,000/- per month. 5. The learned counsel for the appellant next contends that notwithstanding the fact that the appellant has been undergoing treatment for a long period of time (53 days as inpatient) the tribunal has awarded only an amount of Rs.2,000/under the head of extra nourishment. At least an amount of Rs.100/- per day for the period of hospitalisation should have been granted, contends counsel. We agree. 6. Finally the learned counsel argues that the quantum of compensation awarded under the head of pain and suffering is too low. The total period of hospitalisation and the nature of injuries must be taken into consideration. We are satisfied, in the facts and circumstance of this case, Rs.30,000/- can be awarded as compensation under the head of pain and suffering. For loss of amenities, an amount of Rs.10,000/- has been awarded. 14% is the disability suffered. This physical disability 5 M.A.C.A.No.878 of 2010 would necessarily precipitate reduction and impairment in the quality of enjoyment of life of the 23 year old claimant. He will have to endure the disability for the rest of his life. We are satisfied, in these circumstances, that an amount of Rs.25,000/can be awarded as compensation under the head of loss of amenities. We are not persuaded to agree that the amounts awarded under the other heads deserve or warrant interference invoking our jurisdiction under Section 173 of the Motor Vehicles Act. 7. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount as compensation in addition to the amount already awarded by the Tribunal. |**_Sl.No._**|**_Head_**|**_Amount_**<br>**_awarded_**|**_Details_**| |---|---|---|---| |1|Loss of earnings|Rs.4,500/-|(6x 2750 minus 12000)| |2|Extra nourishment|Rs.3,300/-|(53x100,i.e.5300 minus<br>2000)| |3|Pain and suffering|Rs.10,000/-|(30000 minus 20000)| |4|Compensation in reduction<br>in earning capacity|Rs.41,160/-|(3250x12x18x14/100=<br>98280 minus 57120)| |5|Compensation for loss of<br>amenities|Rs.15,000/-|(Rs.25000 minus 10000)| ||Total|Rs.73,960/-|| 6 M.A.C.A.No.878 of 2010 ## 8. In the result, a) this appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs. 73,960/- (Rupees seventy three thousand nine hundred and sixty 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 under the impugned award. d) All other directions of the Tribunal are upheld. ## **R. BASANT, JUDGE** ## **M.C. HARI RANI, JUDGE** jsr/ks 7 M.A.C.A.No.878 of 2010 **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A.No.878 of 2010 8 9 M.A.C.A.No.878 of 2010 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010