PRADEEPAN.P.N. v. N.V.RAGHAVAN, GOPALAN and THE UNITED INDIA INSURANCE CO. LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938 MACA.No. 1413 of 2006 ( ) -------------------------- AGAINST THE AWARD IN OPMV 978/2000 of MACT,THALASSERY DATED 06-02-2006 APPELLANT(S)/PETITIONER: --------------------------------- PRADEEPAN.P.N., S/O.KUNHIRAMAN, AGED 35 YEARS,, KORAMBATH HOUSE, P.O.WEST PONNIAM. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): -------------- 1. N.V.RAGHAVAN, S/O.KANNAN, MADATHIL HOUSE, P.O.THIRUVANGAD,, (OWNER OF AUTORISHAW NO.KLC 8552). 2. GOPALAN, S/O.KANNAN, ACHIPURATH HOUSE, ARKKULAM AMSOM DESOM, P.O.ARIKKULAM,, (DRIVER OF AUTORISHAW NO.KLC 8552 D.K.NO., 1626/87/CT). 3. THE UNITED INDIA INSURANCE CO.LTD., KANNUR, (POLICY NO.100802/31/060/11/01832/1998). R3 BY SHRI JOHN JOSEPH VETTIKAD, S.C. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **M.A.C.A.No.1413 of 2006 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] June, 2016** ## **JUDGMENT** ## **K. Ramakrishnan, J.** The claimant in O.P.(MV) No.978 of 2000 on the file of the Motor Accidents Claims Tribunal, Thalassry is the appellant herein. The appellant filed the application for compensation for the injuries and disability suffered by him in an accident occurred on 27.4.1999. According to the claimant, he was travelling in an auorickshaw with No.KLC 8552 from Champad to Thalassery and when it reached the place called Kuttimakkeel, the autorickshaw which was driven by the second respondent, owned by the first respondent and insured by the third respondent, overturned and thereby caused injuries to him. He was taken to Government Hospital, Thalassery and then to Kasthurba Hospital, Manipal for treatment. He suffered permanent disability as well. According to him he was a salesman in a shop getting Rs.4,500/per month and he claimed a total compensation of Rs.3,50,000/- on various heads. ## 2. Respondents 1and 2 remained absent. 3. The third respondent insurance company filed written statement admitting the policy of the vehicle but denied negligence on MACA 1413/2009 2 the part of the driver of the vehicle. According to them, the compensation claimed is exorbitant and the injuries and disability are exaggerated. So, they prayed for dismissal of the application. 4. The appellant was examined as PW1 and the doctor who issued by the disability certificate was examined as PW2. Exts.A1 to A12 were marked on the side of the claimant. No oral or documentary evidence was adduced on the side of the respondents. 5. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of the autorickshaw by the second respondent and awarded a total compensation of Rs.82,750/- on various heads as follows: Loss of earnings : Rs. 4,500/Pain and suffering : Rs.14,000/Medical expenses : Rs.25,400/Extra nourishment : Rs. 1,300/Bystander's expenses : Rs. 3,750/Transport to hospital : Rs. 2,100/Damage to clothing : Rs. 500/Permanent disability : Rs.16,200/Loss of amenities in life : Rs. 5,000/Disfiguration : Rs.10,000/--------------Total : Rs.82,750/========= 6. Heard learned Sri M. Sasindran, learned counsel for the appellant and Sri John Joseph Vettikad, learned counsel for the third MACA 1413/2009 3 respondent as notice to respondents 1 and 2 dispensed with in the appeal. 7. Learned counsel for the appellant submitted that the tribunal was not justified in taking 5% as disability for assessing compensation. The amount awarded under the heads compensation for pain and suffering and loss of amenities in life are also on the lower side. He prayed for enhancement of compensation on all heads. 8. On the other hand, learned counsel for the insurance company submitted that the tribunal has considered all the aspects in the right perspective and awarded just and reasonable compensation. 9. The case of the appellant in the claim petition was that he was aged 29 years and working as a salesman in a shop getting a monthly income of Rs.4,500/-. Except his interested testimony, there is no other evidence adduced on his side to prove this fact. It is true that if he is having any permanent employment, there may be some document to prove his actual income. But at the same time, if there is no such documentary evidence available, the tribunal may have to do some guess work to get the possible monthly income that will be earned by a person working as a salesman in a shop for the purpose of assessing compensation. The tribunal must be practical and pragmatic also in such aspects. Considering the fact that the accident occurred in the year 2000 and also considering the fact that in 1994 the legislature had fixed the income of a non earning person as Rs.15,000/- per MACA 1413/2009 4 annum, we feel that the amount of Rs.1,500/- taken by the tribunal as the monthly income of the claimant is on the lower side and we are inclined to refix the same as Rs.2,000/-. 10. The claimant sustained fracture both bones of right middle 1/3[rd] of forearm and he was treated as an inpatient originally at Government Hospital, Thalassery and thereafter he was taken to Kasthurba Hospital, Manipal and treated as an inpatient from 29.4.2000 to 19.5.2000 there. Even thereafter he had gone for check up. The tribunal had taken only three months for awarding compensation under the head loss of earnings. But considering the nature of injuries, period of treatment and the nature of treatment undergone, he will have to be without any employment at least for five months. So, we award an amount of Rs.10,000/- under the head loss of earnings (Rs.2,000/- x 5 months) instead of the sum of Rs.4,500/awarded by the tribunal and thereby he will get an additional amount of Rs.5,500/- on that head. 11. The tribunal has awarded only an amount of Rs.14,000/under the head compensation for pain and suffering. The claimant sustained fracture of both bones and treated as inpatient for 27 days and internal fixation was also done. So, considering these facts, we enhance the compensation for pain and suffering to Rs.20,000/thereby he will be getting an additional amount of Rs.6,000/-. 12. It is seen from Ext.A8 disability certificate given by PW2 that MACA 1413/2009 5 the claimant is having 2.5% c.m. shortening of radius bone and there is non union of fracture as well. But the tribunal had discarded the evidence of PW2 on the ground that he was not able to give an answer regarding the length of bone, etc. So, the tribunal has taken the disability only as 5% for the purpose of assessing compensation under the head loss of earning power. But it may be mentioned here that a person having non union of ulna and finding it difficult for movement of his wrist, may have some impact on his earning capacity as well. So, we are incline to take the disability as 10% instead of 25% assessed by the doctor, in view of the fact that it cannot be treated as a whole body disability affecting his earning capacity in toto. Being a salesman in a shop, it may have some impact but it will not totally affect him for doing that work as claimed by him. 13. Further, in **Rajesh v. Rajbir Singh** (2013 (3) KLT89), the Apex Court has held that even in cases where there was no permanent income, future prospects will have to be taken for the purpose of assessing compensation. For persons in the age group of 25 to 40, 50% of the monthly income will have to be added as future prospects for assessing compensation under the head loss of dependency. For persons in the age group of 40 to 50, the same will be 30% and in the case of persons in the age group of 50 to 60, the percentage to be taken is 15. But the same principle has been extended by the Apex Court to injury cases also, in the decision reported in **Syed Sadiq and** MACA 1413/2009 6 ## **others v. Divisional Manager, United India Insurance Company** **Ltd** . {(2014) 2 SCC 735}. So, applying the above principle, 50% of the monthly income will have to be added as future prospects for the purpose of assessing compensation under the head compensation for loss of earning capacity. The tribunal had taken 18 as the multiplier which is not correct in view of the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation** {(2009) 6 SCC 121}, as for the age group of 25 to 30, the multiplier applicable is 17. If a recalculation is made on that basis, he will be entitled to get a sum of Rs.61,200/- (Rs.2000/- x150/100 x 12 x 17 x 10/100) under the head loss of earning capacity and deducting Rs.16,200/- awarded by the tribunal, the claimant will be entitled to get an additional amount of Rs.45,000/-under that head. 14. The tribunal had awarded only Rs.5,000/- under the head loss of amenities in life and Rs.10,000/- as compensation for disfiguration. Both these heads will have to be clubbed together for the purpose of awarding compensation under the head loss of amenities in life and discomfort including marriage prospects and disfiguration, etc.. Considering the nature of injuries and disfiguration noted on account of the injury sustained and treatment undergone, we enhance the compensation to Rs.30,000/- instead of Rs.15,000/awarded by the tribunal under the two heads, viz. loss of amenities (Rs.5,000/-) and disfiguration (Rs.10,000/-) and thereby he will get an MACA 1413/2009 7 additional amount of Rs.15,000/-. We are not inclined to enhance the compensation under the other heads. So, the appellant will be entitled to get an additional compensation of Rs.71,500/- over and above the compensation awarded by the tribunal which the third respondent insurance company is liable to pay with interest at 9% per annum from the date of petition till payment. Three months time is granted to deposit the amount. If the amount is deposited, the appellant is permitted to withdraw the same. With the above modification of the impugned award of the tribunal, the appeal is disposed of accordingly. Considering the circumstances of the case, the parties are directed to bear their respective costs in the appeal. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**