Shamsudheen v. V.K. Sathyan, Balan M.K. and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 MACA.No. 1430 of 2011() ----------------------OPMV.635/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER: ------------------------- SHAMSUDHEEN, AGED 23 YEARS, S/O.MUHAMMED, NAMBODANKUTTI KUNIYIL HOUSE, MUTTUNGAL POST, VADAKARA-VIA KOZHIKODE. BY ADV. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN RESPONDENT(S): --------------- 1. V.K.SATHYAN, AGE NOT KNOWN, S/O.KUNHIRAMAN, VANNANKANDY HOUSE, CHERODU POST, VADAKARA, KOZHIKODE. 2. BALAN.M.K., AGE NOT KNOWN S/O.CHEKKINI, MULLARIKANDIYIL HOUSE, VANIMAL POST, BADAGARA, KOZHIKODE. 3. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, SEEMA BUILDINGS, G.H.ROAD, KOZHIKODE. BY ADV. SRI.GEORGE CHERIYAN (THIRUVALLA) FOR R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **M.A.C.A.No.1430 of 2011** ------------------------------- **Dated this the 9[th] day of November, 2011** ## **J U D G M E N T** Claimant is the appellant. He, a 23 year old salesman in a fancy shop claimed compensation for the personal injuries suffered by him in a motor accident which took place on 14.11.2006. He claimed a total amount of Rs.3 lakhs. He had suffered multiple injuries including fractures. He was an inpatient for a period of 33 days. He had suffered permanent disability as a result of the accident. The extent of disability was assessed by the medical board under Ext.C1 to be 17%. The Tribunal by the impugned award against a total claim of Rs.3 lakhs awarded an amount of Rs.1,20,628/- as compensation as per the details given in paragraph 13 of the impugned award which we extrat below. |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_awarded_**<br>**_(Rs.)_**| |---|---|---| |1|Transport to hospital|400| |2|Extra nourishment|400| |3|Loss of earnings (2000 x 2)|4000| |4|Treatment expenses|50688| |5|Bystander's expenses|3300| |6|Pain and suffering|10000| |7|Permanent disabilit<br>(2000 x 12 x 18 x 12/100)|51840| ||**TOTAL**|**120628**| M.A.C.A.No.1430 of 2011 2 The insurance company is made entirely liable under the impugned award to satisfy the award. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded by the Tribunal. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the Tribunal had most unreasonably assumed the monthly income of the 23 year old young petitioner to be Rs.2,000/- only. The Tribunal did not accept and act upon the salary certificate issued by the employer of the appellant which showed that he was earning an income of Rs.6,000/- per mensem. The learned counsel for the appellant submits that an appropriate enhancement has to be given on the monthly income of the appellant. 4. We take note of the presumption of prudence under Clause 6 of II schedule of the Motor Vehicles Act which has remained in force from 1994. We take note of the dictum in **Latha Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi & Ors. v. Mohammad Tabbar & Anr.** (2008 ACJ 1488) which permit the Tribunals to assume that even a non earning home M.A.C.A.No.1430 of 2011 3 maker as also an unskilled labourer can be assumed to earn an income of Rs.3,000/- per mensem. We are satisfied that Rs.3000/can safely be held to be the income of the appellant on the date of the accident. While ascertaining the compensation for reduction in earning capacity, making due provision for future increase in prospectus and employment as held in **Sarala Verma v. Delhi Transport Corporation** (2009 (6) SCC 121) we are satisfied that Rs.3,250/- can be reckoned as the monthly income. The amount awarded under the head of loss of earnings and loss of earning capacity will hence have to be re-worked with the above inputs. 5. The learned counsel for the appellant submits that the medical board has assessed the disability of the appellant to be 17%, the Tribunal had arbitrarily reduced it to 12%. The only reason stated by the Tribunal in support of this is that there was some residual post polio paralysis for the appellant as indicated in the discharge summary. We are of the opinion that in any view of the matter, 17% can safely be reckoned to be the extent of reduction in earning capacity consequent to the accident suffered. 6. The learned counsel for the appellant submits that no amount of compensation has been awarded under the head loss of amenities. The physical disability suffered by the claimant is bound M.A.C.A.No.1430 of 2011 4 to leave behind two fold reflections on his life. It reduces the earning capacity and it also reduces the quality of enjoyment of life which the 23 year old young appellant can aspire to lead hereafter for the entire rest of his life. We are satisfied that an amount of Rs.20,000/- can be awarded as compensation under this head. 7. The learned counsel for the insurance company submits that the multiplier to be adopted considering the age of the appellant is not 18, but 17, in the light of the II schedule to the Motor Vehicles Act. We agree. 8. We are not persuaded to interfere with the quantum of compensation awarded under any other heads. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.82,870/- as compensation as shown below in addition to the amount amount awarded by the Tribunal. 1. Loss of earnings (3000 x 2 minus 4000) Rs. 2,000.00 2. Reduction in earning capacity (3250 x 12 x 17 x 17/100 = 1,12,710 minus 51,840) Rs. 60,870.00 3. Loss of amenities (No amount awarded by Rs. 20,000.00 the Tribunal) M.A.C.A.No.1430 of 2011 5 ## **TOTAL** ## **Rs. 82,870.00** 10. The learned counsel for the appellant points out that proportionate cost has not been awarded as per the dictum in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943) and only an amount of Rs.1,500/- has been awarded as cost. We direct that proportionate cost on the entire amount of compensation for the proceedings before the Tribunal shall be paid to appellant as held in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). ## - 11. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.82,870/- (Rupees eighty two thousand eight hundred and seventy only) in addition to the amount already awarded by the Tribunal under the impugned award; 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) The proportionate cost for the proceedings before the Tribunal shall be payable on the entire of amount of compensation calculated as per the dictum in **Jeena v. Satheesh** M.A.C.A.No.1430 of 2011 6 **Babu.K.** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.** ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **C.M.Appln.No.2182of 2011 in M.A.C.A.No.1430 of 2011** ------------------------------- **Dated this the 9[th] day of November, 2011** ## **J U D G M E N T** This petition is filed to condone the delay of 337 days in filing the appeal. 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 to satisfy the award. We take a lenient view. Petition allowed. Delay condoned. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** ## **nj.**