P. Devasen @ Digil Ligin v. Ramanaiah (Deleted), Kamalakannan and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935** **MACA.No. 1311 of 2009** **-------------------------AGAINST THE AWARD IN OP(MV)NO. 3064/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** **...................** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **P.DEVASEEN @ DIGIL LIGIN, S/O.BALRAJ, PANAKKAL HOUSE, UDUMALPETT, S.V.PURAM, S.V.MILL P.O., TAMILNADU,** **(NOW RESIDING AT C/O.C.I.VARGHESE, S/O.IYYUKUTTY, CHOWALLOOR HOUSE, CHATHAMKULAM, P.O.PATTIKKAD, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT(S):RESPONDENTS:** **---------------------------------------------------** ## ***(1.) RAMANAIAH, PROPRIETOR,** **M/S.RAVI BALA ROADWAYS, 32/424/B, VELAYUTHA HOUSE, PADIVATTOM KORA, EDAPPALLY SOUTH P.O., ERNAKULAM.(DELETED).** ***R1 IS DELETED FROM THE PARTY ARRARY AT THE RISK OF THE APPELLANT VIDE ORDER DTD. 15/11/2013 IN I.A.2950/13 IN MACA NO.1311/2009.** ## **2. KAMALAKANNAN, S/O.MAHALINGAM,** **MUTHAIYA STREET, VELLORE DISTRICT, WALAJAPET, TAMILNADU.** ## **3. THE ORIENTAL INSURANCE CO. LTD.,** **REPRESENTED BY DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, THRISSUR.** **R3 BY SRI.MATHEWS JACOB,SENIOR ADVOCATE ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 1311 of 2009 ================== Dated this the 29[th] day of November, 2013 J U D G M E N T K.Ramakrishnan, J.: The claimant in O.P.(M.V).No.3064/2001 on the file of the Motor Accidents Claims Tribunal, Thrissur, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. (The 1[st] respondent was deleted from the party array as per order in I.A.No.2950/2013 dated 15.11.2013). After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of ` 2,47,200/- on various heads as follows: ||Head of claim|Amount awarded<br>`|Amount awarded<br>`| |---|---|---|---| |1|Loss of earning||12,000.00| |2|Expense for transportation||1,000.00| |3|Expense for extra nourishment||2,000.00| |4|Damages to clothing||500.00| |5|Expense for treatment||50,900.00| |6|Expense for bystander||2,200.00| |7|Pain and sufferings||25,000.00| |8|Compensation for disability||153,600.00| ||Total||2,47,200.00| m.a.c.a.1311/09 - : 2 :- Dissatisfied with the quantum of compensation awarded, the appellant has come before this Court with the above appeal claiming enhancement of compensation. 2. Heard both sides. 3. The learned counsel for the appellant submitted that the appellant was working as a salesman in a shop and getting ` 4,500/- per month. But the Tribunal has arbitrarily fixed his monthly income as ` 2,000/-, which is palpably low. Further, he suffered severe injuries and also treated as inpatient for 22 days and underwent several surgeries. But the Tribunal has awarded only ` 25,000/- under the head, 'pain and suffering', which is also on the lower side. Further, as per the decision in **Sarla Verma** **v. Delhi Transport Corporation** , 2009 ACJ 1298 (SC), the proper multiplier applicable to the age group is 19, as the appellant was, is 18. But the Tribunal has taken only 16, which is not correct. Further, no amount was awarded under the head, 'loss of amenities in life”. The amount awarded under the heads, 'extra nourishment', 'transport expenses' and 'loss of earning' are also on the lower side. So, according to the learned counsel m.a.c.a.1311/09 - : 3 :- for the appellant, the appellant is entitled to get enhancement on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that considering the fact that the accident occurred in the year 2001, the total compensation awarded is just and proper and the Tribunal has considered all the aspects and no interference is called for at the hands of this Court. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellant was that he was working as a salesman in a shop under the petitioner in O.P.(M.V). No.3065/2001, which was tried along with this case, and getting ` 4,500/- per month at the time of accident. But no acceptable evidence was adduced on the side of the appellant to prove his income. Under such circumstances, the Tribunal can only do some guess work and notionally fix his monthly income. But considering the fact that the accident occurred on 17.6.2001, the amount of ` 2,000/- fixed by the Tribunal as his monthly income m.a.c.a.1311/09 - : 4 :- appears to be on the lower side and we are re-fixing the same as ` 2,500/- per month. The Tribunal has taken six months' loss of earning during the period of treatment. If the monthly income of ` 2,500/- is taken, he will be entitled to ` 15,000/- under that head, instead of ` 12,000/- awarded by the Tribunal. ## 7. The appellant suffered the following injuries: “.... “severe head injury, fracture maxilla, fracture both nasal bones, fracture inferior aspect of both frontal sinus, fracture ACF, subdural haematoma, lacerated wound involving both margin of eye lids, posterior dislocation of right hip joint, partial corneal tear with IRISPROLAPSE right side, lacerated wound lower lip multiple bodily injuries....” Further, he had undergone treatment as inpatient for 22 days, for fracture maxilla, fracture nasal bone, facio maxillary injury partial corneal tear, fracture anterior cranial fossa and sub dural hemorrhage. He had also undergone several surgical operations including iridictomy. He might have suffered severe pain. So the amount of ` 25,000/- awarded by the Tribunal under the head, 'pain and suffering' appears to be on the lower side and we enhance the same to ` 35,000/-. He had lost vision of his right eye apart from other disabilities. He is also having some neurological deficit apart from orthopedical disability. The m.a.c.a.1311/09 - : 5 :- disability certificate issued by the doctor shows that he is having 35% neurological deficit and 12% orthopedical disability. The Tribunal has taken a combined permanent disability of 40% for the purpose of assessing compensation under the head, 'loss of earning capacity', which appears to be reasonable and we are not inclined to enhance the percentage of disability taken as the court has to consider the overall impact of the disability on his working capacity and not the total physical disability assessed by the doctor. But there is some force in the submission made by the learned counsel for the appellant that the multiplier taken is not correct. As per the decision in **Sarla Verma's case** (supra) the proper multiplier applicable to the age group of 19 years, as the appellant was, is 18, and not 16. If a re-calculation is made on the above inputs, the appellant will be entitled to ` 2,16,000/(` 2500 x 12 x 18 x 40%) instead of ` 1,53,600/- awarded by the Tribunal under the head, 'loss of earning capacity' and we award this amount under that head. 8. There is some force in the submission made by the learned counsel for the appellant that no amount was awarded m.a.c.a.1311/09 - : 6 :- under the head, 'loss of amenities in life' including marriage prospects and dis-figuration caused due to the eye injury. It is settled law that permanent disability caused to a person may have two impacts. One may affect his earning capacity and apart from that, it may have impact on his personal life as well. So a person suffered physical disabilities affecting both these things, will be entitled to get compensation under both these heads. But the Tribunal has not awarded any amount under the head, 'loss of amenities in life'. Considering the fact that he was aged only 19 years and lost one eye and suffering 40% disability, the Tribunal ought to have awarded a reasonable amount under the head, 'loss of amenities in life'. Considering these aspects, we feel that an amount of ` 60,000/- can be awarded under that head and we do so. In spite of the persuasive arguments of the learned counsel for the appellant, we do not find any reason to interfere with the amounts awarded by the Tribunal under the other heads as we feel that the amounts awarded by the Tribunal under the other heads are just and proper. In all, the appellant will be entitled to additional compensation of ` 1,35,400/- over m.a.c.a.1311/09 - : 7 :- and above what has been awarded by the Tribunal, which the 3[rd] respondent-insurance company is liable to pay with 9% interest per annum from the date of petition till payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge