Sasikumar and Sreekumar v. The National 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 THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 MACA.No. 2639 of 2010() ----------------------OPMV.146/2007 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... ## APPELLANT/PETITIONER -------------- 1. SASIKUMAR,B/O. THE INJURED SREEKUMAR, SREEVILASOM, AMABALRTHUMBHAGOM.P.O, KUNNATHUR. 2. SREEKUMAR, SREEVILASOM, AMABALRTHUMBHAGOM.P.O, KUNNATHUR. BY ADV. SRI.PRATHEESH.P ## RESPONDENT(S): RESPONDENT ------------------------- THE NATIONAL INSURANCE CO. LTD., PARAMESWARAM PILLAI BHAVAN, NEAR ALUKKAS, KOLLAM -1. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No. 2639 of 2010 ---------------------------------------Dated this the 25[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** The claimants are the appellants. The injured/disabled is the 2[nd] appellant/claimant. He claimed compensation for the loss suffered by him on account of personal injuries which he endured in an accident which took place on 20/8/2006. His condition was too bad and that is why he has staked the claim along with his brother who was looking after him as the first claimant. He had suffered head injury as a result of the accident. He was an inpatient for a period of 38 days. He continued treatment thereafter. He had allegedly suffered permanent disability as a result of the accident. At the request of the claimant/appellant, he was referred to the Medical Board. The Medical Board constituted by the Superintendent, Medical College Hospital, Thiruvananthapuram consisting of seven Doctors including experts in the Department of Neurology, Opthalmology, Orthopedics, Physical Medicine, ENT and Neuro Surgery and Psychiatry examined the claimant/appellant 2 M.A.C.A.No.2639 of 2010 and Ext.X1 report was submitted by them to court. They assessed the physical disability of the claimant as 60%. The Tribunal by the impugned award against the total claim of Rs.6 lakhs awarded an amount of Rs.2,43,171/- as compensation as per the details which are given in paragraph 10 of the impugned award which we extract below: |**Sl.No**<br>**.**|**Head of account**|**amount**<br>**awarded**|**Basis vital details**<br>**in a nut shell**| |---|---|---|---| |1|Loss of earning<br>(total)|Rs.6,000/-|Rs.100 x 60 days| |2|Loss of earning<br>(partial)|Rs.3,000/-|50 x 60 days| |3|Medical expenses|Rs.62,671/-|Ext.A12 series bills<br>produced| |4|Future treatment|Rs20,000/-|considering the<br>injury| |5|Bystander expenses|Rs.9,000/-|Rs.100x90days 1<br>person| 3 M.A.C.A.No.2639 of 2010 |**Sl.No**<br>**.**|**Head of account**|**amount**<br>**awarded**|**Basis vital details**<br>**in a nut shell**| |---|---|---|---| |6|Transportation<br>expenses|Rs.5,000/-|Ext.A13 series bills<br>produced but<br>several column are<br>found in the way<br>bills and there is no<br>supporting<br>evidence but<br>considering the<br>travelling distance<br>and periodical<br>check up| |7|Extra nourishment|Rs.5,000/-|considering the<br>injuries| |8|Damage to clothing|Rs. 500/-|As reasonable<br>amount| |9|Pain and suffering|Rs.20,000/-|serious<br>complicated<br>injuries| |10|loss of amenities<br>and enjoyment of<br>life|Rs.10,000/-|Considering the<br>inconvenience<br>caused due to<br>disability.| |11|Loss/reduction in<br>earning capacity|Rs.1,02,000/-|Rs.3000x3/2x12x17<br>x25/100| ||Total|Rs.2,43,171/-|Rs.2,43,171/- along<br>with interest at the<br>rate of 7.5% per<br>annum from<br>30/12/2006.| 2. Arguments have been advanced by the learned counsel for the appellant -claimant and the learned counsel for the 4 M.A.C.A.No.2639 of 2010 ## respondent- Insurance Company. 3. The challenge is raised against the impugned award only on the ground of inadequacy of quantum. 4. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. 5. First of all it is contended that the quantum of monthly income reckoned by the Tribunal is grossly inadequate. The Tribunal had reckoned Rs.100/- per day i.e. 3,000/- per month as the monthly income. We are unable to agree on the basis of the material presently available, that the Tribunal had committed any incorrectness warranting interference in concluding that the monthly income can be reckoned as Rs.3000/-. Salary certificate produced, Ext.A15, only shows that the income was Rs.3,700/- per mensem. 6. We are, in these circumstances, of the opinion that the said finding of the Tribunal does not warrant interference. 7. The learned counsel for the appellant next contended that the tribunal had erred grossly in reckoning the percentage 5 M.A.C.A.No.2639 of 2010 of reduction in earning capacity as 25%. This was done by the tribunal ignoring Ext.X1 report of the medical board which stated categorically that the appellant had physical disability by reasons of physical/visual/psychiatric impairment. Due to i) diffuse axonal injury (head injury following a road traffic accident. ii) right hemiparesis iii) mild dysarthria. 8. The seven consultants together had rendered an opinion that they found that the appellant/injured has partial disability of 60%. Before the tribunal, the appellant/injured was examined also. When examined as PW1, the tribunal had noted as follows: “The physical appearance of the petitioner while he was giving evidence supports his physical conditions”. 9. His physical condition was narrated in detail in the chief affidavit. It is after adverting to that narration that the tribunal proceeded to make that observation. The learned counsel for the appellant contends that the tribunal had erred grossly in not accepting and acting upon the contents of Ext.X1. 6 M.A.C.A.No.2639 of 2010 The tribunal felt that the details given in Ext.X1 are not sufficient and that the appellant had failed in examining any doctor who was responsible for the issue of Ext.X1. The learned counsel for the appellant submits that the approach made by the tribunal is grossly unsatisfactory. We find force in that submission. It is clearly seen that the appellant was referred to such a medical board by the tribunal. If the tribunal felt that there was any insufficiency in the certificate submitted to the tribunal by the Board to which the tribunal had sent the claimant/appellant, it was certainly for the tribunal to have sought for the details. The tribunal could have examined any member of the board if the tribunal felt the necessity. At any rate, finding fault with the appellant for not examining any member of the board is, according to us, unsatisfactory. Of course, the appellant could also have examined any one of the doctors who issued Ext.X1. The tribunal could have specifically directed the appellant/claimant to take necessary steps. The tribunals constituted under Section 165 of the M.V.Act have certainly the burden to ensure that just compensation is made available to the victims of motor accidents. That is the clear mandate of Section 7 M.A.C.A.No.2639 of 2010 168 of the M.V.Act. The tribunals would do well to remind themselves that they are not merely lis resolvers or umpires. A pro-active and dynamic role must certainly be played by the tribunals if their constitution under Section 165 of the M.V.Act to achieve the goal specified in Section 168 of the M.V.Act were to be justified. Suffice it to say that, we find no reason in the facts and circumstances of this case to disagree with the report Ext.X1 secured by the tribunal by sending the injured/claimant to the expert medical board. We would certainly prefer to err in favour of the claimant, if error be unavoidable. We agree that Ext.X1 report of the Medical Board can be accepted and 60% can safely be accepted as the extent of physical disability as well as the reduction in earning capacity. 10. The learned counsel for the appellant then contends that the tribunal erred in reducing the monthly income by 1/3[rd] while ascertaining the quantum of compensation payable for reduction in earning capacity. While compensation payable in respect of a deceased person is considered, a standard deduction of 1/3[rd] is reduced from the monthly earnings. There is a principle behind this. To earn such amount, the earner would 8 M.A.C.A.No.2639 of 2010 have incurred expenditure of himself. It is giving credit to such personal expenses of the deceased (which expenses do not exist after his death) that 1/3[rd] is deducted from the monthly earnings. That principle, according to us, can have no application in a case where permanent disability has resulted. The victim will have to sustain himself and for that will have to incur personal expenses to survive. In these circumstances, at any rate, deduction of 1/3 from the monthly earnings while ascertaining the reduction in earning capacity is certainly not justified. The tribunal, we hold, has grossly erred in indulging in such deduction of 1/3. The tribunal has not given any reason for such deduction. Hypothetically, it may be possible in a given case to contemplate the earner being forced to incur expenditure in addition to the normal expenditure in connection with his employment. Where a substantiative additional personal expenses is to be incurred in connection with the employment etc. of the victim (which expenditure does not have to be incurred during the period of enforced unemployment after the suffering of disability). Such reduction of personal expenses may be justified. It is by the same logic that conveyance allowance 9 M.A.C.A.No.2639 of 2010 incurred for transport in connection with employment is excluded normally while ascertaining the multiplicand. But there is absolutely no circumstances available in this case where compensation is claimed for personal injury suffered by the victim to justify any deduction from the monthly income on the ground of such personal expenses. The tribunal, therefore, had erred grossly, we agree, in deducting 1/3[rd] from the monthly earnings. In fact, the impugned award shows that the monthly income has been multiplied by 3/2 but a careful calculation reveals that the monthly income was not multiplied by 3/2 but it is multiplied only by 2/3 evidently to provide for the reduction of 1/3 towards personal expenses. 11. The learned counsel for the insurance company alertly points out that for a person like the appellant/injured of age group 30-35 years, 16 and not 17 is the multiplier applicable by following the dictum in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** . We agree. 12. The learned counsel for the appellant finally contends that only an amount of Rs.10,000/- has been awarded under the 10 M.A.C.A.No.2639 of 2010 head of loss of amenities. 60% disability has been suffered. The claimant/appellant is aged only 31 years. He will have to endure the disability for the rest of his life. All dimensions of such impairment in the quality of life will have to be taken into account. All inconvenience, disabilities, discomfiture etc. including impairment in marriage prospects and shortened expectation of life will have to be taken into consideration. We agree with the learned counsel for the appellant that the amount of Rs.10,000/- awarded under the head of loss of amenities is insufficient. 13. We are not persuaded to agree that the amount awarded under any other specified head deserves interference/modification/enhancement. 14. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount as compensation in addition to the amount already awarded by the tribunal. i) Loss of reduction in earning capacity Rs.2,43,600/[3,45,600/- (Rs.3,000/- x 12 x 16 x 60/100) minus Rs.1,02,000/-] 11 M.A.C.A.No.2639 of 2010 ii) Loss of amenities and enjoyment Rs.20,000/of life (Rs.30,000/- minus Rs.10,000/-) --------------------- Rs.20,000/- **Total Rs.2,63,600/=========** 15. In the result, - a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.2,63,600/- (Rupees two lakhs sixty three thousand and six hundred only) in addition to the amount already 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 directed by the tribunal. - d) 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.2639 of 2010 12 13 M.A.C.A.No.2639 of 2010 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010