S.M. Ramesh v. P.K. Selvaraj, T. Ravichandran & The United India Insurance Company Limited

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 11TH AUGUST 2011 / 20TH SRAVANA 1933 MACA.No. 733 of 2006(C) ---------------------OPMV.1837/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... ## APPELLANT/PETITIONER ---------------------------------- S.M.RAMESH, AGED 51 YEARS, SON OF LATE S.M.SULTHAN, SULTHAN MANZIL, K.K. PADMANABHA MENON ROAD, ERNAKULAM, COCHIN-18. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS RESPONDENTS : RESPONDENTS --------------- 1. P.K.SELVARAJ, S/O.KUPPUSAMY, 52, BATA RAILWAY CROSSING, FARIDABAD. 2. T.RAVICHANDRAN, S/O.DHARMALINGAM, SITTILILINGAM UDAYAR THOTTAM, THIMMANAIKKAM PATTI, RASIPURAM TALUK, MANGALAPURAM VIA., NAMAKKAL, MAVATTOM. 3. THE UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS DIVISIONAL MANAGER, COCHIN-16. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.733 of 2006-C ******************************* Dated this the 11[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. Claimant is the appellant. He claimed compensation for the loss suffered by him as a result of personal injuries suffered by him in a motor accident which took place on 27.03.1998. He was aged 43 years. He had suffered multiple fractures, including fracture of the third and the fourth ribs, comminuted fracture of lateral tibial condyle, fracture distal end of radius, fracture of right maxiliary lateral border of right orbit and right zygomatic bone. He was an inpatient for a period of 61 days in two spells. He was running a textile shop. According to him, earnings from his efforts was Rs.5,000/- per mensem. Against a total claim of Rs.6 lakhs, the Tribunal by the impugned award directed payment of an amount of Rs.1,90,000/- as per the details given below: i) Loss of earnings for 3 months : Rs. 6,000.00 (3 X 2000) ii) Damage to clothing : Rs. 500.00 iii) Transport expenses : Rs. 500.00 2 **M.A.C.A No.733 of 2006-C** iv) Extra nourishment : Rs. 1,500.00 v) Attendant expenses : Rs. 1,500.00 vi) Medical expenses : Rs.1,20,000.00 vii) Loss of amenities and enjoyment in life : Rs. 20,000.00 viii) Compensation for pain and suffering : Rs. 30,000.00 ix) Compensation for continuing and permanent disability : Rs. 10,000.00 ---------------------Total : Rs.1,90,000.00 ========= 2. We have heard the learned counsel for the appellant/claimant and the respondent/insurance company. The challenge is directed against the impugned award only on the ground of inadequacy of the quantum of compensation. 3. We requested the learned counsel for the appellant to explain and be specific. The learned counsel for the appellant first of all contends that the Tribunal had erred grossly in lightly assuming that the monthly income of the appellant was only Rs.2,000/-. He was of course not an employee. He was running a business. The input in the form of his efforts are entitled to be valued. We have considered all indications available about the nature of business that he was transacting and the profit that he **M.A.C.A No.733 of 2006-C** 3 was generating. In that view of the matter, we are satisfied that the assumption that the income was only Rs.2,000/- per mensem is not proper and the same deserves upward modification/enhancement. We take note of presumption of prudence in respect of non earning persons under clause 6 of the Second Schedule from 1994. We take note of the evaluation of the monetary equivalent to the services of a home maker in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218]. We are satisfied that the monthly income of the appellant can safely be assumed to be Rs.3,500/-. 4. The learned counsel next contends that the Tribunal has not awarded reasonable amount under the heads of extra nourishment and attendant expenses. For 61 days, the appellant was an inpatient. Only an amount of Rs.1,500/- each has been awarded under these heads. We are satisfied, considering the period of hospitalisation and the nature of injuries, that there must have been a bystander for all the 61 days. We are hence of the opinion that an amount of Rs.6,000/- can safely be awarded under the head of bystander's expenses. Further an amount of Rs.6,000/- as extra nourishment during the period of treatment can also be awarded. 4 **M.A.C.A No.733 of 2006-C** 5. The learned counsel for the appellant contends that after taking note of the disability assessed by the Medical Board at 17%, the Tribunal erred in not directing any payment under the head of reduction in earning capacity. A total amount of Rs.30,000/- is seen awarded under two heads, namely loss of amenities and enjoyment in life (20,000/-) and compensation for continuing and permanent disability (Rs.10,000/-). Counsel argues and we agree that the Tribunal ought to have specifically adverted to the quantum of compensation payable for reduction in earning capacity as also for loss of amenities in life. An assessment has been made by the Medical Board and we are satisfied that 17% which is accepted by the Tribunal can be accepted as the extent of physical disability. 6. We now come to the question of reduction in earning capacity. The appellant was managing his own business. The mere fact that the turn over has not reduced or that profit has not actually come down is no reason for a prudent person to lightly assume that the disability has had no reflection on the earning capacity of the victim. Considering the nature of the income earning activity by the appellant – running/managing a textile shop, we are satisfied that the extent of reduction in 5 ## **M.A.C.A No.733 of 2006-C** earning capacity need not mechanically be accepted as the physical disability. For 17% physical disability, we are certainly of the opinion that 12% can be reckoned as the extent of reduction in earning capacity. Adopting the multipliermultiplicand method, the quantum of compensation payable for reduction in earning capacity can be ascertained. Considering the age of the victim/appellant – 43 years, 14 can be accepted as the multiplier as per the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121]. 7. 17% physical disability must certainly have impaired and reduced the quality of enjoyment in life of the appellant who was aged only 43 years at the time of the accident. We are satisfied that a global amount of Rs.25,000/- can safely be fixed as the quantum of compensation payable for the loss of amenities in life resulting from the disability suffered in all its dimensions. 8. The above discussions lead us to the conclusion that the appellant is entitled to the following amount as compensation for the loss suffered by him. i) Loss of earnings : Rs.10,500.00(3 X 3500) (as against Rs.6000 awarded by the Tribunal) |**M.A.C.A No.733 of 2006-C**|**M.A.C.A No.733 of 2006-C**|6|| |---|---|---|---| |ii)|Damage to clothing|:|Rs. 500.00| |||(as awarded by the|| |||Tribunal)|| |iii)|Transport expenses|:|Rs. 500.00| |||(as awarded by the|| |||Tribunal)|| |iv)|Extra nourishment|:|Rs. 6,000.00 (as against| |||Rs.1,500/- awarded by the|| |||Tribunal)|| |iv)|Bystander's expenses:||Rs. 6,000.00 (as against| |||Rs.1,500/- awarded by the|| |||Tribunal)|| |v)|Medical expenses|:|Rs.1,20,000.00| ||||(as awarded by the| ||||Tribunal)| |vi)|Compensation for pain and||| ||suffering|:|Rs. 30,000.00| ||||(as awarded by the| ||||Tribunal)| |vii)|Reduction in earning||| ||capacity|:|Rs.70,560.00 (as against| ||||Rs.10,000/- awarded by the| ||||Tribunal)| ||||[3,500 X 14 X 12/100]| |ix)|Compensation for||| ||loss of amenities|:|Rs. 25,000.00(as against| ||||Rs.20,000/- awarded by the| ||||Tribunal)| ||||........................| ||Total||Rs.2,69,060.00| ||||=========| 7 ## **M.A.C.A No.733 of 2006-C** 9. We are not satisfied that the amounts awarded by the Tribunal on the other heads deserve any interference from us. 10. In the result: - a) This appeal is allowed in part; - b) In supersession of the direction issued by the - Tribunal, the appellant is found entitled to a total amount of Rs.2,69,060/- (Rupees Two lakhs sixty nine thousand and sixty only) as compensation ; c) The entire amount of compensation shall carry interest @ 7.5% per annum from the date of petition to the date of payment/deposit/realisation; - d) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/