Somalal v. Mohan Kumar, Sali and New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 MACA.No. 1590 of 2008 ----------------------OPMV.1473/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): PETITIONER: ------------------------- SOMALAL, S/O.SOMADETHAN, AGED 28 YEARS, PANNALAYETHU VEEDU, PRAYAR SOUTH MURI, CLAPPANA, KARUNAGAPPALLY. BY ADV. SRI.PRATHEESH.P ## RESPONDENTS: RESPONDENTS: --------------------------- 1. MOHAN KUMAR, S/O.RAGHAVAN, PANAYAMKATTIL, MAHADEVIKKAD, KARTHIKAPPALLY. 2. SALI, S/O.BHASKARAN, THAICHIRA THEKKETHIL, NORTH OF PULIKKEEZHU JUNCTION, MAHADEVIKKAD, KARTHIKAPPALLY. 3. NEW INDIA ASSURANCE CO. LTD., BRANCH MANAGER, KOLLAM. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERIED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI,JJ ==============================** ## **M.A.C.A. NO.1590 OF 2008 ============================** ## **Dated this the 31[st] day of August 2011** ## **JUDGMENT** ## **R.Basant, J.** Claimant is the appellant. He claimed compensation for the loss suffered by him on account of personal injuries sustained in a motor accident on 11/4/2003. He was riding his bicycle. The insured vehicle had allegedly knocked him down. He had suffered multiple injuries including multiple fractures. Both bones of the right forearm were fractured. Right femur was fractured. He was an in-patient for a period of 21 days in two spells. He had allegedly suffered permanent disability. The same was assessed to be 12% by a doctor under Ext.A11 disability certificate. He was aged 28 years at the time of the accident. He was an L.I.C agent and he claimed that his monthly income was Rs.10,000/-. The tribunal, by the impugned award, directed payment of an amount of Rs.57,497/- as compensation as per the details given below: MACA 1590/2008 2 ## Part-1 1. Loss of earnings and partial Rs.6,000/loss of earnings (Rs.2,000/- x 3) 2. Transport to hospital Rs.3,000/3. Damage to clothing and articles Rs. 500/4. Extra nourishment Rs.2,000/5. Medicine Rs.7,977/6. Bystander Rs.2,100/Part-II 7. Compensation for pain and Rs.10,000/sufferings 8. Compensation for continuing Rs.25,920/or permanent disability if any (Rs.2,000/-x6x18x12/100) 9. Compensation for loss of earning power NIL ------------------- **Total Rs.57,497/-** ======== 2. Arguments have been advanced by the learned counsel for the appellant/claimant and the learned counsel for the insurance company. The learned counsel for the insurance MACA 1590/2008 3 company has been made entirely liable to satisfy the impugned award. The impugned award is challenged only on the ground that the quantum of compensation awarded is not adequate. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. First of all it is contended that the monthly income reckoned by the Tribunal (Rs.2000) is grossly inadequate. The appellant has produced the income certificate to show that his total income from T.A. and commission as an L.I.C.Agent for the past five years wereRs.1,25,065/-(2006-07),Rs.58,943/-(2005-06), Rs.60,078/-(2004-05),Rs.51,466/-(2003-04)and Rs.17,297/-(200203).The learned counsel for the appellant argues in the backdrop of such evidence, the Tribunal erred grossly in assuming Rs.2000/- only as the monthly income of the injured/claimant. We find merit in that contention. It is true that the monthly earnings is not salary and would definitely vary every month. The figures given include T.A.also. But that cannot lead us to the conclusion that the Tribunal can accept any unreal amount as the monthly earnings. In the facts and circumstances of this case, we are satisfied that Rs.6000/- can safely be reckoned as the monthly income of the claimant/ appellant. In coming to the conclusion, we look at not MACA 1590/2008 4 only Ext.A10, but we also take note of the presumption available from 1994 under Clause 6 of the 2[nd] Schedule to the Motor Vehicles Act. We also take note of the decisions of the Supreme Court in Lata Wadhwa v. State of Bihar [A.I.R. 2001 S.C. 3218] and Lakshmi Devi v. Mohammed Tabbar [2008 A.C.J.1488]. We do take note of the dictum in **Sarla Verma v. D.T.C.[(2009)6 S.C.C.121]** which speaks of the need to provide for increase in monthly earnings also. We are satisfied, in these circumstances, that it must be absolutely reasonable to reckon the monthly income of the appellant/claimant to be Rs.6000/-. 4. It is next contended that though in Ext.A11 disability certificate, the Doctor who treated the appellant had certified the physical disability to be 12%, the Tribunal has reckoned only 6% as the extent of physical disability. This is incorrect, contends counsel. We take note of the nature of the injuries and the alleged disability, details of which are given in Ext.A11. We take note of the nature of employment of the appellant - as an L.I.C.Agent. We are, in these circumstances, satisfied that the Tribunal has not committed any error in reckoning 6% alone as the extent of reduction in earning capacity. 18 has been taken as the multiplier. Though 17 is shown in **Sarla Verma(supra)** MACA 1590/2008 5 to be the multiplier applicable to a person aged 25-30 years, we note that in the vertical column No.2 in the table/chart given under Schedule 2, 18 has been shown as the multiplier for computing the compensation in the case of permanent disablement. The dictum in **Sarla Verma(supra)** was primarily concerned with the multiplier to be adopted in death cases, a different higher multiplier for permanent disablement case is perfectly justifiable. As reckoning of the multiplier at 18 is justified by the multiplier given in vertical column No.2 of the table/chart in the 2[nd] schedule, we do not think it necessary to interfere with the multiplier reckoned by the Tribunal. 5. Learned counsel for the appellant then points out that even though very serious fractures have been suffered and the appellant has been an inpatient for 21 days, the Tribunal had awarded only Rs.10,000/- as compensation for pain and suffering. We are satisfied that the said amount can be enhanced. 6. Physical disability suffered by a person has two fold reflections on the life of the victim. It reduces the earning capacity and it also reduces and impairs the quality of enjoyment of life of the victim. No amount was awarded by the Tribunal under the head of loss of amenities. We agree with the MACA 1590/2008 6 learned counsel for the appellant that all dimensions of the loss suffered on account of the physical disability also deserves to be taken into reckoning while awarding compensation. 7. On the basis of the above discussions, we come to the conclusion that the appellant is entitled for the following further amount as compensation in addition to the amount already awarded by the Tribunal. 1) Loss of earnings :Rs.12,000/-(6000x3 minus 6000) 2)Compensation for pain and suffering : Rs.5,000/-(15000 minus 10000) 3) Compensation for reduction in earning capacity :Rs.51,840/-(6000x12x18x6/100= 77,760 minus 25920) 4)Compensation for loss of amenities :Rs.15,000/-(no amount awarded by the Tribunal) Total :Rs.83,840/======== 8. Interest has been awarded only at the rate of 6% per annum. The learned counsel contends and we agree that the interest awarded is too low. We direct that the interest be paid at the rate of 7.5% per annum 9. In the result a)this appeal is allowed in part. MACA 1590/2008 7 b)The appellant is found entitled to a further amount of Rs.83,840/--(Rupees eighty three thousand eight hundred and forty only) in addition to the amount already awarded by the Tribunal. c)We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation d)All other directions of the Tribunal are upheld. Sd/- **R.BASANT, JUDGE** **Sd/M.C. HARI RANI,JUDGE** ks. TRUE COPY P.S. TO JUDGE MACA 1590/2008 8