Shiju v. National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935** **MACA.No. 2633 of 2010 ( )** **--------------------------** **AGAINST THE AWARD IN OPMV 646/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOLLAM DATED 09-02-2010** ## **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **SHIJU, SOWBHAYAM, PRAKULAM, THRIKKARUVA.** **BY ADV. SRI.PRATHEESH.P** ## **RESPONDENT/RESPONDENT NO.3:** **------------------------------------------------------------** **THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., KOLLAM-691 001.** **R,R1 BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jm/** ## **S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.** **---------------------------------------------** **M.A.C.A. No. 2633 OF 2010 --------------------------------------Dated this the 23[rd] day of September, 2013.** ## **J U D G M E N T** ## K.Ramakrishnan, J. The petitioner in O.P.(M.V.) No. 646/2003 on the file of the Motor Accidents Claims Tribunal, Kollam is the appellant herein. The appellant preferred the above claim for compensation for the injuries and disabilities sustained by him in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle insured with the respondent. After considering the evidence on records, the Tribunal found that the accident occurred due to the negligent driving of the vehicle insured with the respondent and awarded a total compensation of Rs. 3,02,935/- which was rounded off to Rs.3,03,000/- under various heads as follows: |_Sl._<br>_No._|**_Head of Claim_**|**_Amount_**| |---|---|---| |_1 _|_Loss of earning for 6 months_|_18,000/-_| |_2 _|_Transport to hospital_|_3,000/-_| |_3 _|_Extra nourishment_|_2,000/-_| |_4 _|_Damage to clothing & Articles_|_500/-_| |_5 _|_Others - Bystander expenses_|_2,000/-_| |_6 _|_Medical expenses_|_1,40,435/-_| |_7 _|_Compensation for pain and suffering_|_25,000/-_| M.A.C.A. No. 2633 OF 2010 2 ||_PART - II_|| |---|---|---| |_8 _|_Compensation for Continuing for_<br>_permanent disability_<br>_(2000x12x17x25x100)_|_1,02,000/-_| |_9 _|_Compensation for the Loss of_<br>_amenities in life_|_10,000/-_| ||**_TOTAL_**|**_3,02,935/-_**| Dissatisfied with the quantum of compensation awarded, the appellant has come before this Court with the above appeal. 2. Heard the counsel for the appellant and the counsel for the insurance company. 3. The counsel for the appellant submitted that, though the petitioner has not produced documents to prove his income as Rs.5000/- as mechanic he had stated so in his affidavit, but, the Tribunal has taken only Rs.3000/- as his monthly income, which is on the lower side. Further, the Tribunal has taken a different standard by fixing the monthly income as Rs.2,000/- for the purpose of assessing compensation under the head loss of earning capacity. The appellant was aged only 21 years at the time of accident. But, the Tribunal has taken only 17 as multiplier instead of 18, as has been held in the decision of the Supreme Court in _**Sarla Verma v. Delhi Transport Corporation, [2010 (2) KLT 802 SC]**_ Further the doctor, who treated the patient has M.A.C.A. No. 2633 OF 2010 3 assessed the disability at 51%, but the Tribunal has taken only 25%, which is also on the lower side. The amount awarded under head of pain and suffering, loss of amenities in life etc. are also on the lower side. so according to the counsel for the appellant, the appellant is entitled to enhancement on all heads. 3. On the other hand, the counsel for the insurance company submitted that in the petition the appellant has claimed Rs.1,500/- per month as his income, but the Tribunal has taken Rs.3,000/- as his income. The over all compensation awarded is just and proper and no interference is called for at the hands of this Court. 4. We have considered the rival contentions of both parties in detail. 5. It is true that petitioner has claimed Rs.1,500/- as income in his petition. Subsequently, he had adduced evidence stating that he is having a monthly income of Rs.5,000/- per month. Considering over all circumstances of the case, the Tribunal has fixed Rs.3,000/- as his monthly income, considering the fact that the accident occurred in the year 2002. But, at the same time, the Tribunal has taken only M.A.C.A. No. 2633 OF 2010 4 Rs.2,000/- as the monthly income of the appellant for the purpose of assessing compensation under the head loss of earning capacity, which appears to be unsustainable in law as no two standards cannot be taken by the Tribunal for fixing the monthly income of the appellant, one for the purpose of the assessing loss of earning during the period of treatment and another for the purpose of assessing compensation under the head loss of earning capacity. So we take the monthly income of the appellant as Rs.3,000/- for the purpose of assessing compensation under the head loss of earning capacity as well. As per the decision of the **Sarla Verma'a** Case (Supra) for the age group of 21, the multiplier applicable is 18 and not 17. It is true that the Doctor, who issued the disability certificate has assessed the disability as 51%. But, he was not examined. It is not necessary that, he must have disability to that extent affecting his earning capacity, considering his nature of his employment. So the Tribunal was perfectly justified in the circumstances in fixing 25% as the occupational disability for assessing compensation under the head loss of earning capacity. If a recalculation is made by taking the monthly income as Rs.3,000/- per month, multiplier as 18, and M.A.C.A. No. 2633 OF 2010 5 disability as 25% per month, the appellant will be entitled to get Rs.1,62,000/(3000x12x18x25%) instead of Rs.1,02,000/- awarded by the Tribunal under the head loss of earning capacity as we award that amount under the head. 6. The disability certificate issued by the Doctor shows the following disability. - “1. Pain ® shoulder 2. Pain and tenderness ® forearm had terminal spine injury CI-D1 level. 3. Root avulsion injury. 4. Deep abrasion over the dorsal lateral aspect of ® foot. 5. Abrasion ® hand with numbness. 6. Fracture femoral head. 7. Fracture head of humerus. 8. Traumatic brachia l plexus injury (L) He is aged only 21 years at the time of accident and he will have to live with this difficulty for the remaining period of his life. This will have a great impact on his personal life and affect his enjoyment in life and comfort as well. So the amount of Rs.10,000/- awarded by the Tribunal under the head loss of amenities in life appears to be on the lower side and we enhance the same to Rs.50,000/- from Rs.10,000/Though, persuasive arguments have been made by the counsel for the appellant for enhancement of compensation under other heads, we are not inclined to enhance the same as M.A.C.A. No. 2633 OF 2010 6 the amount awarded under other heads appears to be just and proper. In all the appellant will be entitled to get an additional compensation of Rs.1,00,000/- over and above the amount awarded by the Tribunal, which the respondent - insurance company is liable to pay with 9% interest from date claim petition till the date of payment. Two months time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. sd/ ## **S.SIRI JAGAN JUDGE** sd/ **K. RAMAKRISHNAN JUDGE** jm/ \\ TRUE COPY \\ PA TO JUDGE M.A.C.A. 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