Raju v. Shaji & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 MACA.No. 1100 of 2005 ----------------------OPMV.2054/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... ## APPELLANT/: APPELLANT/PETITIONER. ----------------------------------- RAJU, S/O.PADMANABHAN, ARIYAPARAMBIL HOUSE,KADAKKARAPPALLY, PANCHAYATH WARD NO.7, CHERTHALA, ALAPPUZHA. BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA) ## RESPONDENTS: RESPONDENTS. --------------------------- 1. SHAJI, AREAPARAMBIL HOUSE, KADAKKARAPPALLY P.O. CHERTHALA. 2. G.GOPI, S/O.GOPALAKRISHNAN, KANDAMANGALATHU NIKARTHIL HOUSE, KURUPPANKULANGARA P.O. CHERTHALA. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., ALAPPUZHA. 4. SURESH, S/O.RAMANKUTTY, VELIYIL VEEDU, MARARIKULAM P.O. CHENNAVELI, CHERTHALA. 5. JOSEPH SAMSOM, ANJILIPARAMBIL, ARTHUNKAL P.O. CHERTHALA. 6. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., ALAPPUZHA. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3&6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO.1100 OF 2005 ============================** ## **Dated this the 18[th] day of October 2011** ## **JUDGMENT** ## **R.Basant, J.** The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 1/3/1997. He had suffered serious injuries including fracture. Fracture of the left femur at its middle is the main injury suffered. He was an inpatient for a period of one month at Medical College Hospital, Kottayam. He was initially admitted to a local hospital on the date of the accident, from where he was referred to the Medical College Hospital. He had allegedly suffered permanent disability. Certificate,Ext.A8 produced by him shows that the disability was assessed by a Doctor of the Taluk Hospital at 22%. The claimant examined himself as PW1. 2. Against a total claim of Rs.3 lakhs, the Tribunal awarded only a total amount of Rs.72,250/- as per the details which we extract below: MACA 1100/2005 2 |**_sl.No._**|**_head_**|**_Amount_**<br>**_awarded_**|| |---|---|---|---| |Part-I<br>1|Loss of earning to one year|Rs.9,000|1500x6| |2|Transport to hospital|Rs.1,500|| |3|Expenses incurred for treatment<br>and medicines|Rs.,3000|| |4|Extra nourishment|Rs.1,500|| |5|By stander expenses|Rs.2,000|| |6|Compensation for damage to<br>clothing|Rs. 250|| |Part II<br>7|Pain and suffering,mental agony,<br>nervous shock|Rs.15,000/-|| |8|Permanent disability|Rs.30,000|(1500x12x17x 10/100)| |9|Loss of earning power|Rs.10,000|As loss of amenities| ||Total|Rs.72,250/-|With 6% interest per<br>annum from 16/12/1997 till<br>realisation and cost of<br>2000/-| ## 3. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company which has been made entirely liable under the impugned award. The challenge is raised against the impugned award only on the ground of quantum of compensation. 4. Called upon to explain and be specific, the learned counsel for the appellant first of all submits that the appellant is MACA 1100/2005 3 a spray painter. His monthly income was Rs.4500/-. The Tribunal unreasonably assumed his monthly income to be only Rs.1500/-. The accident had taken place in 1997. No better evidence was made available to help the court to ascertain the quantum of monthly income authentically. Learned counsel for the appellant submits that even in the absence of any better evidence, reasonable inferences ought to have been drawn by the Tribunal. It would have been absolutely reasonable to the Tribunal to assume an appropriate amount as the irreducible monthly income of a spray painter like the appellant. It was totally unreasonable to assume that only Rs.1500/- was the monthly income. Counsel points out the presumption of prudence which is available for the courts from 1994 under clause (6) of the IInd Schedule to the Motor Vehicles Act. Counsel for the appellant also placed reliance on the decisions in **Lata Wadhwa & Others v. State of Bihar & others[A.I.R. 2001 S.C.3218]** and **Laxmi Devi v. Mohammad Tabbar** [2008 A.C.J. 1488]. Having anxiously considered all the relevant circumstances, we are certainly of the opinion that Rs.2500/- can be reckoned as the monthly income of the appellant on the date MACA 1100/2005 4 of the accident in 1997. 5. It is then contended that the quantum of compensation awarded under the head of pain and suffering (Rs.15,000) is grossly inadequate. A very serious injury to the left femur was suffered. He was treated as an inpatient and surgical procedure had to be undergone. He continued inpatient treatment for a period of one month. He was obliged to continue out patient treatment for a long period of time after the accident. He was in POP cast for a long period of time. The Tribunal had rightly reckoned six months as the period of involuntary unemployment as a result of the accident. Taking all the circumstances into account, it is evident that amount awarded (Rs.15,000/-) for pain and suffering is inadequate, contends counsel. We agree. We are of the opinion that Rs.25,000/- can safely be fixed as the quantum of compensation payable for pain and suffering. 6.Learned counsel for the appellant then assails the quantum of compensation awarded under the head of reduction in earning capacity. Rs.30,000/- has been awarded. Even though it is indicated that the multiplier multiplicand method MACA 1100/2005 5 was adopted by the Tribunal, there is no authentic data available to ascertain the multiplier adopted by the Tribunal. 17 is the multiplier applicable for claimants like the appellant who belong to the age group of 30-35 years as per the dictum in **Sarla Verma v. D.T.C.[2009(6)S.C.C.121]** . If 17 were taken as the multiplier even going by the monthly income of 1500/- accepted by the Tribunal, Rs.30,600/- (1500x12x17x10/100) would have been the quantum of compensation payable. Only Rs.30,000/- is seen awarded as a global amount. 7. It is next contended that the Tribunal reckoned only 10% as the extent of reduction in earning capacity, notwithstanding the certificate, Ext.A8 which showed that 22% is the permanent physical disability suffered measured on the Mc brides scale. It is true that the Doctor was not examined. But in the nature of the injury and the period of treatment etc., we are satisfied that reasonable inferences can be drawn. The appellant has to be found fault with for not tendering acceptable evidence to prove Ext.A8, though it was marked subject to objection. But in any case taking the totality of the circumstances into account, we are satisfied that physical MACA 1100/2005 6 disability which has indisputably suffered by the appellant must have resulted in reduction in earning capacity to the extent of 15%. We are satisfied that the quantum of compensation payable under the head of reduction in earning capacity deserves to be reworked on the basis of the above discussions. 8. Physical disability suffered by a person has two fold reflections on his life. It reduces the earning capacity. It also impairs and reduces the quality of enjoyment of life which the injured appellant can aspire to lead. He will have to live with the disability for the entire rest of his life. Only an amount of Rs.10,000/- has been awarded as compensation for loss of amenities. We are satisfied that the said amount deserves to be enhanced. 9. Learned counsel for the appellant submits that interest has been awarded only at the rate of 6% per annum. This is inadequate, contends counsel. We agree and we accept that interest at 7.5 % per annum is payable from the date of the claim to the date of payment/realisation for the entire amount of compensation found due. MACA 1100/2005 7 10. Counsel lastly contends that proportionate cost has not been awarded as held in **Jeena v. Satheesh Babu.K.[2011(3) K.H.C.728].** We agree that the claimant/appellant is entitled to proportionate cost as held in **Jeena (supra).** 11. On the basis of the above discussions, we come to the conclusion that the appellant is entitled to a further amount of Rs. 72,500/- in addition to the amount awarded by the Tribunal as per the details given below: 1)Loss of earnings :Rs. 6000/(2500x6=15000 minus 9000) 2)Pain and suffering (25000-15000) 3.Reduction in earning capacity (2500x12x17x15/100= 76500 minus 30000 ) : Rs.10,000/- : Rs.46,500/- 4)Loss of amenities : Rs.10,000/(20000 minus 10000) Total : Rs. 72,500/========= 12. In the result, a)this appeal is allowed in part. b)The appellant is found entitled to a further amount MACA 1100/2005 8 of Rs.72,500/- (rupees seventy two thousand five hundred only) in addition to the amount awarded by the Tribunal. c)We direct that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. d)We further direct that proportionate cost before the Tribunal be paid as indicated in **Jeena(supra)** . d)All other directions of the Tribunal are upheld. ## **R.BASANT, JUDGE** ## **M.C. HARI RANI,JUDGE** ks. MACA 1100/2005 9