Rajan Babu K. vs The New India Assurance 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 17TH AUGUST 2011 / 26TH SRAVANA 1933 MACA.No. 521 of 2011(D) ---------------------OPMV.275/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT : PETITIONER ------------------------ RAJAN BABU K., S/O. KUNJAPPY, KARUNYA, EDAYOM P.O., VALAKOM. BY ADV. SRI.PRATHEESH.P RESPONDENT : RESPONDENT ------------------------- THE NEW INDIA ASSURANCE CO. LTD., KOTTARAKKARA, 2ND FLOOR, KASTHURBA BUILDINGS, PULAMON P.O., KOLLAM-691 531. ADV. SRI.N.S.MOHAMMED USMAN FOR R THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.521 of 2011-D ******************************* Dated this the 17[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. Claimant is the appellant. Before the Tribunal, he claimed compensation for personal injuries suffered by him in a motor accident which took place on 26.12.2005. Against a total claim of Rs.5 lakhs, the Tribunal awarded only an amount of Rs.1,74,095/- as compensation as per the details given in para.10 of the impugned award, which we extract below: |i)|Loss of earning|:|Rs. 12,000.00| |---|---|---|---| ||||(3,000 X 4)| |ii)|Transportation to hospital||| ||and back|:|Rs. 2,500.00| |iii)|Extra nourishment|:|Rs. 350.00| |iv)|Damage to clothing and||| ||other articles|:|Rs. 500.00| |v)|Cost of medicine and||| ||bystander's expenses|:|Rs. 73,143.00| |||(Bills produced = 72,618|| |||+ (7 X 75) 525)|| |vi)|Compensation for pain||| ||and suffering|:|Rs. 10,000.00| 2 **M.A.C.A No.521 of 2011-D** vii) Compensation for permanent disability : Rs. 75,600.00 (3,000 X 12 X 14 X 15/100) ---------------Total : Rs.1,74,093.00 rounded to : Rs.1,74,095.00 ========== The amount was ordered to be paid along with interest @ 7.5% per annum. 2. The challenge in the appeal is directed against the quantum of compensation awarded only. The 2[nd] respondent/ insurance company has been made entirely liable. There is no representation for the 2[nd] respondent. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. 4. First of all it is contended that the Tribunal has grossly erred in reckoning the monthly income of the appellant, a retired Army personnel and Security Guard at Rs.3,000/- per mensem only. He was employed as a Security Guard and PW2, a retired Lieutenant Colonel was examined to prove Ext.A12 salary certificate, which showed that his monthly salary was Rs.5,090/-. The learned counsel argues that the Tribunal without even **M.A.C.A No.521 of 2011-D** 3 specifically adverting to the evidence of PW2 and Ext.A12, has lightly come to the conclusion that the notional income of the appellant can be reckoned at Rs.3,000/- per mensem. This is incorrect, contends the counsel and we agree. We are satisfied that the monthly income of the appellant can safely be reckoned at Rs.5,000/- per mensem as spoken to by PW2 and as indicated from Ext.A12 salary certificate. 5. The learned counsel for the appellant next contends that the Tribunal has not awarded reasonable amounts under the heads of extra nourishment and bystander's expenses. A total amount of Rs.125/- per day alone has been taken as the total amount due under the head of extra nourishment and bystander's expenses for the 7 days that the appellant was an inpatient. We are satisfied that Rs.200/- can safely be reckoned as the total amount payable per day under the composite head of extra nourishment and bystander's expenses. 6. The learned counsel for the appellant then contends that the amount of compensation awarded under the head of pain and suffering is too inadequate. He had suffered fracture of shaft of left femur and Type I open fracture of the left patella. He was treated by closed interlocking nailing of left femur and 4 **M.A.C.A No.521 of 2011-D** partial patellectomy under general anaesthesia. We are satisfied, in these circumstances, that an amount of Rs.15,000/- can be awarded under the head of pain and suffering. 7. The Tribunal had accepted, relying on the oral evidence of PW1 doctor and Ext.A14 disability certificate issued by him that 15% permanent disability has resulted. Considering the nature of employment of the appellant as a Security Guard, the same was accepted as the extent of reduction in earning capacity. 14 has been taken as the multiplier. The appellant is shown to be a person, aged 45 years. In the absence of better evidence, we reckon him as belonging to the age group of 45-50 years and only 13 can be reckoned as the multiplier adopting the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121]. However, we are satisfied that Rs.5,000/can be reckoned as the monthly income for the purpose of ascertaining reduction in earning capacity. 8. The learned counsel for the appellant then contends that no amount has been awarded under the head of loss of amenities. Physical disability suffered by a person will have two fold reflections on his life. It reduces the earning capacity; it also reduces the quality of enjoyment of life. Under the head of 5 **M.A.C.A No.521 of 2011-D** loss of amenities, the appellant is entitled for compensation. No amount has been awarded under that head. We take note that the evidence of PW1 and Ext.A14 reveal that there was 3.5 c.m shortening of the left lower limb. There was 1 c.m wasting of the left thigh and calf muscles. The doctor had opined that the appellant was able to walk only with limp. He is not able to squat. He is not able to carry weight. He is not able to walk without pain for more than 5 minutes. We are satisfied with the conclusion of the Tribunal that 15% disability has resulted and same is the reduction in earning capacity. But the Tribunal had certainly erred in not awarding any amount under the head of loss of amenities. For all dimensions of the loss of amenities, including difficulty and discomfiture in undertaking all other activities (other than income earning activity), shortening of life, disfiguration etc., we are satisfied that a global amount deserves to be awarded. 9. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount in addition to the amount already awarded by the Tribunal. i) Loss of earning : Rs. 8,000.00 (5000X4=20,000 minus 12,000) 6 **M.A.C.A No.521 of 2011-D** ii) Extra nourishment and bystander's expenses : Rs. 525.00 [(7X200) minus (350+525)] iii) compensation for reduction in earning capacity : : Rs.41,400.00 (5,000 X 12 X 13 X 15/100 = 1,17,000 minus 75,600) : Rs.25,000.00 (no amount awarded by the Tribunal) iv) Loss of amenities (in all dimensions) - v) Pain and suffering : Rs. 5,000.00 (15,000 minus 10,000) ------------------Total : Rs.79,925.00 ======== 10. We are not satisfied that the impugned award warrants interference on any other ground. 11. In the result: - i) This appeal is allowed in part; - ii) The appellant is found entitled to get a further amount of Rs.79,925/- (Rupees Seventy nine thousand nine hundred and twenty five only) in addition to the amount already awarded by the Tribunal under the impugned award; iii) We make it clear that the entire amount of compensation shall bear interest at the rate and for the period as directed by the Tribunal; 7 **M.A.C.A No.521 of 2011-D** iv) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/