Shijumon v. George Abraham & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 MACA.No. 806 of 2009() ---------------------OPMV.1332/2004 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT(S): PETITIONER ------------------------ SHIJUMON,POCHATHANATHU HOUSE, PADINJATTINKARA P.O.,NOW RESIDING AT KARACKAKUZHIYIL,PAMPADI P.O.,REP.BY MOTHER AND NEXT FRIEND LEELAMMA JOSEPH, KARACKAKUZHIYIL,PAMPADY P.O. BY ADV. SRI.A.K.HARIDAS RESPONDENT(S): RESPONDENTS -------------------------- 1. GEORGE ABRAHAM,S/O.ABRAHAM, KARIKKATTUPARAMBIL, KANJIRAPPALLY. 2. THANKAPPAN,S/O.RAGHAVAN, VELLAPPALLIL,PARATHODU, KANJIRAPPALLY. 3. DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., KANJIRAPPALLY. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 BY ADV SRI.P.JACOB MATHEW FOR R3 BY ADV SRI.M.J.WILFRED DAS FOR R1 BY ADV SRI.MANJU ANTONEY FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & V.CHITAMBARESH, JJ.** ------------------------------- ## **M.A.C.A.No.806 of 2009** ------------------------------- ## **Dated this the 10[th] day of November, 2011** ## **J U D G M E N T** Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 8.7.2003. The claimant was a person aged 18 years at the time of the accident. He was a student at the relevant time. He was attending Industrial Training Centre. It is his case that while attending the institution, he was also earning income as a rubber tapper. He suffered multiple serious injuries including head injury as a result of the accident. He allegedly suffered substantial personal disability as a result of the accident. He is unable to move from bed even now. He was produced before the Tribunal and the Tribunal personally observed and verified his alleged disability. He was sent to a medical board under Ext.X1 which reported that the claimant was substantially disabled to the extent of 75%. The claimant is not able to respond. He has preferred a claim petition and this appeal through his mother. Initially, the claim was staked before the Tribunal through his father. His expired during the pendency of the proceedings and now he is being represented by his mother. 2. Against the total claim of Rs.9 lakhs, the Tribunal awarded a total amount of Rs.4,54,500/- as per the details given in M.A.C.A.No.806 of 2009 2 paragraph 14 of the impugned award which we extract below:- |Sl.No.|Head of claim|Amount awarded| |---|---|---| |-------------------------------------------------------------------------||| |1.|Medical expenses|Rs. 72,000.00| |2.|Transport to hospital<br>|Rs. 2,000.00| |3.|Extra nourishment<br>|Rs. 5,000.00| |4.|Damage to clothing|Rs. 500.00| |5.|Bystander expenses|Rs. 27,000.00| |6.|Pain and suffering<br>|Rs. 40,000.00| |7.|Compensation for continuing|| ||disability and loss of earning|| ||power<br>|Rs. 2,88,000.00| |8.|Loss of amenities<br>|Rs. 10,000.00| |9.|Expenses for future treatment|Rs. 10,000.00| |------------------------------------------------------------------||| ||TOTAL<br>|Rs. 4,54,500.00| |=====================================||| The insurance company is made entirely liable under the impugned award to satisfy the award. 3. 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. 4. Called upon to explain and be specific, the learned counsel for the appellant submits that the Tribunal erred grossly to coming to the conclusion that 75% disability (of the nature reported in M.A.C.A.No.806 of 2009 3 Ext.X1 and observed by the Tribunal) had resulted in reduction in earning capacity to the extent of 75% only. Most reasonably, the Tribunal should have held that a reduction in earning capacity is total and complete notwithstanding the fact that the physical disability is assessed at 75% by the Tribunal. We find merit in the contention that the extent of physical disability and the extent of reduction in earning capacity are not synonymous terms. We are, in these circumstances, definitely persuaded to agree with the learned counsel for the appellant that the permanent disability of the variety proved in this case must necessarily have resulted in reduction in earning capacity to a higher and greater extent. Taking note of all the relevant inputs into account, we are satisfied that it would be absolutely safe even in the absence of any better evidence to conclude that reduction in earning capacity to an extent not less than 90% must have been suffered by the claimant. 5. It is next contended that the Tribunal was not justified in reckoning only Rs.2000/- as the monthly income. Though it was claimed that the while learning, the claimant was also earning by working as a part time rubber tapper, the Tribunal found no evidence in support of that assertion. But even in the absence of any evidence, M.A.C.A.No.806 of 2009 4 we find it absolutely reasonable to assume that Rs.3,000/- can be reckoned as the probable income of the appellant. In coming to this conclusion, we note that the appellant is a person aged 18 years, he claims that he has been employed as a part time rubber tapper, he was a student of the Industrial Training Centre and the possibility and probability of his securing more better employment must certainly be borne in mind. Taking all the relevant circumstances into account, we find it absolutely safe to reckon Rs.3000/- as the multiplicand. 16 has been accepted by the Tribunal as the multiplier and that was perfectly justified by the II schedule to the Motor Vehicles Act. 6. The learned counsel for the appellant next contends that only an amount of Rs.27,000/- has been awarded as bystander’s expenses. He was an inpatient for a period of 140 days. The amount of Rs.27,000/- awarded under the head bystander’s expenses, we are satisfied, sufficiently take care of the expenses of bystander during the period of treatment. For future requirement of assistance, for the appellant to live and exist with the disabilities, an appropriate amount of compensation has to be fixed under the head of loss of amenities. 7. We now come to the quantum of compensation payable under the head of loss of amenities. Physical disability suffered by the M.A.C.A.No.806 of 2009 5 claimant is bound to leave behind two fold reflections on his life. It reduces the earning capacity and it also reduces the quality of enjoyment of life. The claimant in this case was a 18 year old young person. He was rendered completely disabled as a result of the accident. The evidence indicates that he has confined to bed, he is unable to communicate and he is definitely unable to inure his life. The available indications states that life can appear only trauma, pain and frustration to him hereafter. He would require the assistance of a bystander even to attend to the ordinary source of life. Taking note of the relevant circumstances into account, we are certainly in agreement with the learned counsel for the appellant the amount of Rs.10,000/- awarded under the head loss of amenities is not sufficient and correct. Taking all the dimensions of the loss that the physical disability has precipitated substantial reduction in earning, we are satisfied that an amount of Rs.1,50,000/- can be fixed as the quantum of compensation payable under the head of loss of amenities. 8. We are not persuaded to interfere with the quantum of compensation awarded under any other heads. 9. The above discussion leads us to the conclusion that the M.A.C.A.No.806 of 2009 6 appellant is entitled to a further amount of Rs.3,70,400/- as compensation as shown below in addition to the amount amount awarded by the Tribunal. 1. Reduction in Earning Capacity (3000 x 12 x 16 x 90/100 = 5,18,400 – 2,88,000) Rs. 2,30,400.00 2. Loss of amenities (1,50,000 – 10,000) Rs. 1,40,000.00 ## **TOTAL Rs. 3,70,400.00** 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.6,700/- 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 M.A.C.A.No.806 of 2009 7 of Rs.3,70,400/- (Rupees Three lakh seventy thousand four hundred and sixty 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 awarded on the entire of amount of compensation calculated as per the dictum in **Jeena v. Satheesh Babu.K.** (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. **R.BASANT, Judge** . **V.CHITAMBARESH, Judge.** **nj.**