Pathummakutty v. Alice and 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 WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 MACA.No. 161 of 2005() ---------------------OPMV.777/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT ----------------------- PATHUMMAKUTTY, W/O.MOHAMMED ALI, AGED 35 YEARS, OATHUPALLICKAL, ANDIPADAM, MANNARKKAD, NOW RESIDING AT AZEENA MANZIL, S.R.K.NAGAR, OTTAPALAM. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------ - 1. ALICE, W/O.MATHEW, AGE NOT KNOWN, MATTAMANA HOUSE, 3/439, THENGARA, MANNARKKAD (OWNER OF KLN 8053 JEEP). 2. ORIENTAL INSURANCE CO.LTD., NILAMBUR ROAD, MANJERI. - _(Respondent No.1 deleted from the party array as per order dated_ - _24/9/2007 in I.A.No.271/05)_ ADV. SRI.TITUS MANI FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No. 161 of 2005 ---------------------------------------Dated this the 12[th] day of October 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. She claimed a total amount of Rs.2,00,000/-(two lakhs) as compensation for personal injuries suffered by her in a motor accident which took place on 4/12/2001. She had suffered multiple injuries including fracture of the mandible and fracture of the dento alveolar region. She had suffered lacerated wound on the left thigh muscle deep, exposing the injured quadriceps tendon. She suffered a bone deep injury on the left ankle with loss of skin. She was an inpatient from 4/12/2001 to 13/12/2001. She had to continue treatment. Procedures had to be undergone. She had suffered loss of six teeth. Her permanent disability was assessed at 29%. Reduction in earning capacity was not specifically assessed. 15% of disability was stated to be on account of injury suffered to the facial area. The Doctors who issued the disability certificate were not examined. Photographs were produced. There was an ugly unhealthy scar on the left thigh. Movements 2 M.A.C.A.No.161 of 2005 of the left knee joint were restricted. There was no proper closure of the mouth. Weight bearing on the left side was found to be difficult. 2. The Tribunal, before which there was only Exts. A1 to A11 and Exts.B1, awarded a total amount of Rs.69,850/- as compensation as per the details given below: 1. Pain and suffering : Rs.20,000/2. Loss of earnings : Rs.4,000/-(2000x2) 3. Extra nourishment : Rs.3,000/4.Bystander's expenses : Rs.1,350/-(9days x 150) 5. Medical expenses : Rs.22,000/6..Transport to hospital : Rs. 1,500/7.Reduction in earning capacity : Rs.18,000/-(2000x12x15x5/100) Total : Rs.69,850/========= 3. We have heard the learned counsel for the appellant. The challenge is raised against the impugned award only on the ground 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 Tribunal had erred grossly in reckoning the monthly income to be Rs.2,000/- only. The appellant was aged 35 years. She was 3 M.A.C.A.No.161 of 2005 working as a coolie. She was discharging her obligations as a house wife also. 5. In these circumstances, the tribunal was wholly incorrect in reckoning the monthly income as Rs.2,000/- only, points out the learned counsel for the appellant. The monthly earning must have been reckoned atleast at the rate of Rs.3,000/- per mensum, contends counsel. We find the said contention to be absolutely justified. Even in the absence of better evidence, that request can be accepted. In coming to this conclusion, we take note of the presumption of prudence permitted under clause 6 of the second schedule of the M.V.Act from 1994. We also take note of the decision in **Lata Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** and **Laxmi Devi v. Mohammad Tabbar [2008 ACJ 1488].** The appellant claims to be a house wife/home maker as also an unskilled manual worker. In any view of the matter, we are satisfied that Rs.3,000/- can be reckoned as the monthly income. 6. She had suffered multiple injuries. The tribunal accepted only two months as the period of involuntary unemployment. We are satisfied that the nature of injuries 4 M.A.C.A.No.161 of 2005 suffered by the appellant must have resulted in involuntary unemployment for a period of at least three months. 7. The learned counsel for the appellant then contends that the tribunal erred grossly in not accepting the disability certificate produced by the appellant. 29% is the disability certified by the doctors. The learned counsel for the appellant submits that without any rhyme or reason, the tribunal had reduced the physical disability to 5%. We have taken note of all the relevant inputs. Scar on the thigh and restriction in movements of left knee joint are the items of disability which is likely to affect earning capacity. The other disabilities are mainly cosmetic. The tribunal had reckoned 5% as the disability. Taking the totality of the circumstances into consideration, we are satisfied that 15% can safely be reckoned as the reduction in earning capacity consequent to the physical disability suffered. 15 has been taken as multiplier by the tribunal. Going by the second schedule to the M.V.Act, we are satisfied that 16 can be reckoned as the multiplier, as contended by the learned counsel. 8. The learned counsel for the appellant next points out that no amount has been awarded under the head of loss of 5 M.A.C.A.No.161 of 2005 amenities including disfiguration. The appellant was a 35 year old woman. She will have to endure and live with the physical disability for the rest of her life. Cosmetic disfiguration has also resulted. She is not able to properly close her mouth after the accident because of the disability. We agree with the learned counsel for the appellant that the appellant is entitled for compensation under the head of loss of amenities including disfiguration. An appropriate amount of compensation has to be awarded considering the nature of disability and the young age of the appellant/claimant. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.98,400/- as compensation in addition to the amount awarded by the tribunal as shown below: i) Loss of earnings Rs.5,000/[Rs.9,000/- (Rs.3,000/- x 3) minus Rs.4,000/-] ii) Reduction in earning capacity Rs.68,400/[Rs.86,400/- (Rs.3,000/- x 12 x 16 x 15/100) minus Rs.18,000/-) iii) Loss of amenities (including Rs.25,000/disfiguration - six teeth lost - no amount awarded by the tribunal) 6 M.A.C.A.No.161 of 2005 ----------------Total **Rs.98,400/=======** 10. We are not satisfied that the amount awarded under any other head deserves modification/enhancement invoking our appellate jurisdiction. 11. The learned counsel for the appellant finally contends that only 6% has been awarded as interest by the tribunal. The counsel argues and we agree that interest must have been awarded at a higher rate. We are satisfied that interest can be awarded at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. 12. We are further satisfied that proportionate cost before the tribunal as held in J **eena v. Satheesh Babu.K [2011(3) KLT 943]** has also got to be awarded **.** 13. In the result, a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.98,400/- (Rupees ninety eight thousand four hundred only) in addition to the amount already awarded by the Tribunal. 7 M.A.C.A.No.161 of 2005 c) We make it clear that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the petition to the date of payment/realisation. 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.161 of 2005 8 9 M.A.C.A.No.161 of 2005 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010