IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933
MACA.No. 1458 of 2011()
----------------------OPMV.50/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA ....................
APPELLANT(S): PETITIONER
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SABU C.G., CHERUTHOTTUMKAL HOUSE, CHELLAKKADU P.O., PAZHAVANGADY VILLAE, RANNY TALUK.
BY ADV. SRI.T.K.KOSHY SMT.V.V.RISANI
RESPONDENT(S): RESPONDENTS 1&2:
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1. NAGENDRAMONI, S/O.SREENIVASAN, SREEKRISHNAVILASAM HOUSE, KARIMPANAMKUZHY, NANNUKKAD MURI, PATHANAMTHITTA VILLAGE 689 645
2. BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., BRANCH OFFICE G.H.ROAD, PATHANAMTHITTA 689 645
ADV. SRI.P.JAYASANKAR FOR R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **R.BASANT & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.A.C.A. No.1458 of 2011 ----------------------------------------------Dated 27[th] September, 2011.**
## **J U D G M E N T**
## **Basant, J.**
Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident, which took place on 25.11.2004. Against a claim exceeding Rs.4.6 lakhs, the Tribunal awarded a total amount of Rs.2,40,650/- as compensation, as per the details given in paragraph 7 of the impugned award, which we extract below :
-----------------------------------------------------------------------------------------------
|Sl.||Amount|Amount<br>Basis-vital|
|---|---|---|---|
|No.|Head of claim|claimed(Rs)|awarded(Rs) details in|
||||a nut shell|
|-----------------------------------------------------------------------------------------------||||
|1.|Loss of earnings|85,000|15,000<br>2500 x 6|
|-----------------------------------------------------------------------------------------------||||
|2.|Transportation|||
||expenses|8,000|3,000|
|-----------------------------------------------------------------------------------------------||||
|3.|Extra nourish-|||
||ment|3,000|3,000|
|-----------------------------------------------------------------------------------------------||||
|4.|Damage to|||
||clothing|1,000|500|
|-----------------------------------------------------------------------------------------------||||
|5.|Medical expense|2,68,000|1,07,150<br>As per bills|
|-----------------------------------------------------------------------------------------------||||
|6.|Bystander's|||
||expenses|25,000|6,000|
|------------------------------------------------------------------------------------------------||||
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|7.|Pain and||||
|---|---|---|---|---|
||suffering|80,000|40,000||
|------------------------------------------------------------------------------------------------|||||
|8.|Permanent|||2500x12x17x10|
||disability & loss|||----------------------|
||of earning power|5,37,000|51,000|10|
|------------------------------------------------------------------------------------------------|||||
|9.|Loss of||||
||amenities|25,000|15,000||
|-----------------------------------------------------------------------------------------------|||||
||Total||2,40,650||
|------------------------------------------------------------------------------------------------|||||
2. We have heard learned counsel for the appellant and the learned counsel for the second respondent/Insurance Company, who has been made entirely liable under the impugned award to satisfy the award. Arguments are raised only on the short ground that the quantum of compensation awarded is inadequate.
3. We have heard both counsel. Called upon to explain and be specific, the learned counsel for the appellant raises several contentions.
4. First of all, it is contended that the Tribunal erred grossly in reckoning Rs.2,500/- as the monthly earnings of the appellant. Claimant is a person aged about 34 years at the time of the accident. He claims to be a businessman in timber.
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No material whatsoever is placed before the Court to suggest that the appellant was a businessman dealing in timber. The Tribunal was left to draw just, reasonable and prudent inferences. The Tribunal assumed that the appellant must have been earning an income of Rs.2,500/-. The learned counsel argues and we agree that following the dictum in **Lata Wadhwa v. State of Bihar** (AIR 2001 S.C.3218) and **Lakshmi Devi v. Mohammad Tabbar** (2008 ACJ 1488), reasonable inferences ought to have been drawn by the Tribunal. We are satisfied that an amount of Rs.3,500/- can safely be reckoned as the quantum of monthly income of the claimant.
5. The appellant had suffered multiple injuries, including fractures. There was fracture of the femur(left). There was fracture of the malleolus. There was fracture of the base of the 2[nd] and 3[rd] metacarsal (left). He was an inpatient for a long period of 89 days from 25.11.2004 to 21.2.2005. It is reasonable to assume that the appellant must have been involuntarily unemployed for a period of six months, as a result of the accident. The Tribunal had correctly assumed the period of involuntary unemployment to be six months.
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6. Bills for an amount of Rs.1,07,150/- were produced and that claim was entirely accepted by the Tribunal. The learned counsel for the appellant submits that the amount awarded is insufficient and reasonable inferences ought to have been drawn. The Tribunal must have noted that it would be virtually impossible for the claimant to maintain meticulous accounts duly supported by vouchers to prove all items of expenditure. We agree that for incidental medical expenses, for which bills may not have been made available, due allowances can be made. We are satisfied, considering the period of treatment, nature of injuries and the nature of the procedures undergone, that a further amount of Rs.7,500/- can be awarded under the head of miscellaneous medical expenses (unsupported by documents).
7. It is contended that the fact that the appellant was an inpatient for 89 days and must have continued treatment thereafter as outpatient, was not duly taken note of by the Tribunal while quantifying the compensation payable under the heads of extra-nourishment and bystander's expenses. At least, an amount of Rs.100/- per day under each
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head must have been granted for the entire period of hospitalization, contends counsel. We agree. We are satisfied that the appellant is entitled for further amounts under that composite head of extra-nourishment and bystander's expenses.
8. The appellant had suffered permanent disability. The doctor, who issued Ext.A5 disability certificate was not examined. The appellant was not referred to any Medical Board. Ext.A5 disability certificate shows the disability to be 21%. Oedema of the left lower limb, partial ankylosis of left hip, knee and ankle and 3.5 cm. shortening of the left lower limb are the instances of disability certified in Ext.P5. 21% was certified to be the permanent disability. The Tribunal reckoned only 10% as the reduction in earning capacity. This is incorrect, contends counsel. We take note of all the circumstances. In particular, we take note of the statement of fact in Ext.A5 that there is 3.5 cm. shortening of the left lower limb. This must certainly have an impact on the earning capacity of the appellant as a timber businessman or in any other walk of life. We are persuaded to agree that '15' can safely be reckoned as
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the extent of reduction in earning capacity, even in the absence of more competent assessment of the actual reduction in earning capacity.
9. Learned counsel for the appellant submits that only 15,000/- has been awarded for the loss of amenities. The appellant is a young man aged 35 years. He has shortening of the left lower limb. He will have to endure this disability for the entire rest of his life. A higher amount of compensation under the head of loss of amenities deserves to be awarded, contends the learned counsel for the appellant.
10. Learned counsel for the Insurance Company points out that though only an amount of Rs.15,000/- was awarded by the Tribunal under the head of loss of amenities, an amount of Rs.40,000/- has been awarded under the head of pain and suffering. The direction is fair and just and the same does not warrant interference, contends counsel. We take note of all the relevant circumstances. Rs.40,000/- has been awarded under the head of pain and suffering, evidently considering the multiple fracture suffered and the long period of hospitalization of 89 days. Considering the age of the appellant
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and the nature of the physical disability, in particular, 3.5 cm. shortening of the left lower limb, we are satisfied that the amount of compensation under the head of loss of amenities also deserves to be enhanced.
11. The above discussions led us to the conclusion that the appellant is entitled for a further amount of Rs.88,400/as compensation, as per the details shown below, in addition to the amounts already awarded by the Tribunal.
(1) Loss of earnings - Rs.6,000/(3,500 x 6 = 21,000 minus 15,000) (2) Extra-nourishment and - bystander's expenses : Rs.8,800/(89 x 200 = 17,800 minus 9,000) (3) Medical and miscellaneous - expenses (in addition to the Rs.7,500/amount awarded by the Tribunal) - (4) Reduction in earning capacity Rs.56,100/(3500 x 12 x 17 x 15/100 = Rs.1,07,100 minus 51,000) - (5) Loss of amenities Rs.10,000/(25,000 minus 15,000) - Total Rs.88,400/-
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We are not persuaded to agree that the amount awarded under any other head deserves modification/enhancement.
12. In the result :
- (a) This appeal is allowed in part.
- (b) The appellant is found entitled to a further amount of Rs.88,400/- (Rupees eighty eight thousand and four hundred only) in addition to the amount awarded by the Tribunal.
- (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period, as specified by the Tribunal in the impugned award.
- (d) All other directions of the Tribunal are upheld.
Sd/-
## **R.BASANT, JUDGE.**
Sd/-
## **M.L.JOSEPH FRANCIS, JUDGE.**
tgs
(True copy)
P.S. to Judge.
