Satheesh Kumar P.K v. Shajimon and Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 MACA.No. 1380 of 2011() ----------------------O.P. (MV) NO.361/2008 ON THE FILE OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE. .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- SATHEESH KUMAR P.K , AGED 23 YEARS, S/O.GOPALAN (LATE), PULIYARAMKUNNATH, P.O.CHEEKODU, VAZHAKAD, MALAPPURAM. BY ADV. SRI.V.S.CHANDRASEKHARAN RESPONDENT(S): --------------- 1. SHAJIMON, S/O.VELAYUDHAN, AGED 23 YEARS, RESIDING AT UMMINITHODI HOUSE, P.O.CHERUVAYOOR, MALAPPURAM-679 357. 2. THE ORIENTAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE, SEEMA BUILDING, - G.H.ROAD, KOZHIKODE-673 003. ADV. GEORGE CHERIAN THIRUVALLA (SC) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No. 1380 of 2011-C ------------------------------------------------Dated this the 24[th] day of October, 2011** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. He, a 23 year old young man, claimed compensation for the personal injuries suffered by him in a motor accident which took place on 21/2/2007. He had suffered serious injuries. He had suffered perisplenic haematoma with laceration 3 cm deep involving the upper pole and mid portion of spleen. There was contusion of left kidney with minimal perirenal collection (grade I renal injury). There was injury to right transverse process of L3 vertebra. He continued as an inpatient for 23 days. After discharge, he continued treatment as an outpatient. He had suffered permanent disability to the extent of 20% as reported by the Medical Board to which he was referred under Ext.C1 report. 2. The Tribunal, against a total claim of `2,00,000/-, awarded an amount of `1,10,754/- as compensation as per the details given in paragraph-10 of the impugned award which we ## **M.A.C.A. No. 1380 of 2011** -: 2 :- extract below: |**Sl. No.**|**Head of Claim**|**Amount**<br>**awarded**|**Details**| |---|---|---|---| |1|Transport|200|| |2|Extra Nourishment|500|| |3|Loss of earnings|3000|2000 x 1 ½ months| |4|Bystander's expenses|2200|100 x 22 days| |5|Treatment expenses|10454|Entire bill amount| |6|Pain and suffering|8000|| |7|Disability|86400|2000 x 12 x 18 x20/100| |Total||**1,10,754**|Interest @ 7% from<br>17.3.08| 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. Challenge is raised against the impugned award on the short ground that the quantum of compensation awarded is not adequate. 4. Called upon to explain and be specific, the learned counsel for the appellant, first of all, submits that the monthly income of the appellant reckoned by the Tribunal at `2,000/- is grossly inadequate. He was an Artist employed by Kalbhavan, Kozhikode, and his monthly income, according to him, was `8,000/-. In any view of the matter, the Tribunal has erred ## **M.A.C.A. No. 1380 of 2011** -: 3 :- grossly in reckoning the monthly income at `2,000/-. The learned counsel points out that in the absence of any better evidence, considering the dictum in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi v. Mohammad Tabbar** (2008 ACJ 1488), the Tribunal should not have reckoned the monthly income at anything below `3,000/-. We agree with the learned counsel for the appellant. We are satisfied that `3,000/- can safely be reckoned as the monthly income. 5. The learned counsel for the appellant further submits that considering the serious nature of the injuries and the consequent disablement, the Tribunal was not justified in assuming that there must have been involuntarily unemployed only for a period of 1 ½ months . We accept the submission of the learned counsel and conclude that there must have been involuntarily unemployed for a period of at least 4 months. 6. The learned counsel then contends that under the head of pain and suffering, only an amount of `8,000/- has been awarded. We agree with the learned counsel. Considering the nature of the injuries and the period of initial inpatient treatment and subsequent outpatient treatment, we are satisfied that `15,000/- can safely be accepted as the compensation under the ## **M.A.C.A. No. 1380 of 2011** -: 4 :- head of pain and suffering. 7. Finally, it is contended that no proper compensation has been awarded under the head of physical disability. Physical disability suffered by a person has two fold reflections in his life. It reduces his earning capacity. It also reduces and impairs the quality of enjoyment of life which a victim can aspire to live thereafter. The appellant, a young man in his early 20s, had suffered serious injuries including disablement of 20%. The Tribunal had not awarded any amount under the head of loss of amenities. By multiplier-multiplicand method only an amount of `86,400/- has been awarded, calling it compensation for disability. In fact, the amount fixed by multiplier-multiplicand method can represent only the compensation for reduction in earning capacity, submits counsel. We agree with the learned counsel for the appellant. We are satisfied that separate amounts deserve to be awarded under the head of reduction in earning capacity and loss of amenities in life. Only an amount of `500/has been awarded under the head of extra-nourishment. We are satisfied that the said amount deserves to be enhanced. 8. The learned counsel for the insurance company points out that going by the Second Schedule to the Motor Vehicles Act ## **M.A.C.A. No. 1380 of 2011** -: 5 :- in the case of permanent disability, only 17 can be accepted as the multiplier as stated in the Second Schedule for the persons belonging to the age group 20 to 25 years. It is true that in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the Supreme Court has suggested 18 as the multiplier when their Lordships evidently dealing with a case of death. In a case of permanent disablement, we prefer to follow the Second Schedule to the M.V. Act. 9. On the basis of the above discussions, we come to the conclusion that the appellant is entitled to a further amount of `79,000/- (Rupees seventy nine thousand only) in addition to the amount already awarded by the Tribunal as per the details shown below: |1.|Pain and suffering||| |---|---|---|---| ||(`15,000/- minus `8,000/-)|-|`7,000/-| |2.|Loss of earnings||| ||(`3,000/- x 4 minus `3,000/-)|-|`9,000/-| |3.|Extra-nourishment||| ||(`2,500/- minus `500/-)|-|`2,000/-| |4.|Compensation for loss of||| ||earnings (`3,000/- x 12 x 17 x||| ||20/100 = `1,22,400/- minus||| ||`86,400/-)|-|`36,000/-| ## **M.A.C.A. No. 1380 of 2011** -: 6 :- 5. Loss of amenities (no amount awarded separately - by the Tribunal) `25,000/-------------Total `79,000/====== 10. We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. 11. The learned counsel for the appellant submits that proportionate cost on the entire amount of compensation has not been awarded as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). Only an amount of `1,250/- has been awarded. We agree that the appellant is entitled to proportionate cost as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). ## 12. **In the result:** - (a) This appeal is allowed in part. - (b) The appellant is found entitled to a further amount of - `79,000/- (Rupees seventy nine thousand 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 specified in the impugned award. ## **M.A.C.A. No. 1380 of 2011** -: 7 :- - (d) We, however, direct that no interest shall be payable on - the enhanced amount of compensation for the period of delay i.e., 381 days as already held by us in the application for condonation of delay. - (e) All other directions of the Tribunal are upheld. Sd/- **R. BASANT (Judge) Sd/M.C. HARI RANI (Judge)** **Nan/** **//true copy// P.S. to Judge**