Subash S/o R. Reghuvaran Nair v. J.W. Babu Wills and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 ## **MACA.No. 1141 of 2006()** OPMV.974/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA ## **APPELLANT(S)/APPLICANT:** SUBASH,S/O.R.REGHUVARAN NAIR, SREE BHAVAN, KOOTHAKKODE, ARUMALOOR,KANDALA(P.O), VIA-KOOVALASSERY,NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR ## **RESPONDENT(S)/RESPONDENTS:** 1. J.W.BABU WILLS, WILLS BHAVAN, PARANIYAM,POOVAR (P.O), THIRUVANANTHAPURAM. 2. VINU.A., MANALIKKALAMELE VEEDU, KARINGAL, KANDALA (P.O), VIA-KOOVALASSERY,NEYYATTINKARA, THIRUVANANTHAPURAM. 3. M/S.NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.II, GANDHARIAMMANCOIL ROAD, PULIMOODU, THIRUVANANTHAPURAM. 4. JAYACHANDRAN,CHOUKAVILAKOM, KOOVALASSERY,(P.O), NEYYATTINKARA, THIRUVANANTHAPURAM. 5. M/S.ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.1,THAKARAPARAMBU JUNCTION, PAZHAVANGADI,THIRUVANANTHAPURAM. ADVS. SRI.P.V.JYOTHI PRASAD FOR R5 SRI.RENI ANTO KANDAMKULATHY FOR R3 SRI.R.T.PRADEEP FOR R1,2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & C.T. RAVIKUMAR, JJ.** ## **--------------------------------------------------------M.A.C.A. NO.1141 OF 2006 ---------------------------------------------------------** Dated this the 4th day of March, 2009 ## **JUDGMENT** ## **Basant, J.** The claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.3,00,000/- as compensation for the injuries suffered by him in a motor accident which took place on 6.4.2001. The appellant claimed to be a graduate teacher employed in a parallel college earning Rs.5,000/- per mensem. He suffered injuries including fracture of the right femur and fracture of the third toe of the right foot. He was treated as an inpatient in three spells for a total period of about six months. He allegedly suffered permanent disability which was assessed at 12% by the Medical Officer in Ext.A13 disability certificate. The Tribunal had before it the oral evidence of the claimant himself and also Exts.A1 to A16 documents. 2. The Tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant is entitled to a total compensation of Rs.85,050/- as per the details shown below: M.A.C.A.NO.1141/2006 2 - i. Pain and suffering :Rs.12,000/- ii. Loss of earning :Rs.12,000/-(6x2000) iii. Medical expenses incurred (against bills produced) :Rs.11,000/iv. Damage to clothing :Rs. 250/- v. Transportation expenses :Rs. 1,000/- vi. Compensation for reduction in earning capacity consequent to disability :Rs.40,800/(2000x12x17x10/100) ---------------Total :Rs.85,050/---------------- The said amount was directed to be paid along with interest at the rate of 9% per annum from the date of petition. 3. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, learned counsel for the appellant assails the impugned award on four specific grounds. 4. First of all, it is contended that the multiplicand (monthly income) reckoned is at an unrealistic figure of Rs.2,000/-. The appellant M.A.C.A.NO.1141/2006 3 is a graduate and he was employed as a teacher in a parallel college. Not only his earnings at the time of the accident, but his future prospects also should have been taken into account by the Tribunal while adopting the appropriate multiplicand, contends counsel. The appellant had claimed that his monthly income was Rs.5,000/-. He had produced a certificate to show that he was drawing a salary of Rs.3,000/- per mensem from his employer for his services as a teacher in the parallel college. The Tribunal accepted only Rs.2,000/- . The Tribunal ought to have taken note of the future prospects and that it was totally unrealistic to adopt anything less than Rs.3,000/- as the monthly income of a qualified person like the appellant, contends counsel. Counsel relies on the decision of the Supreme Court reported in **Lata Wadhwa v. State of Bihar, A.I.R. 2001 S.C. 3218** and submits that in any view of the matter, in the facts and circumstances of this case, Rs.3,000/- should have been reckoned as the multiplicand. We find merit in this contention. We agree that Rs.3,000/can be reckoned as the multiplicand. The multiplier was correctly reckoned at 17. Loss of earnings has been fixed at Rs.12,000/-(6x2000). The medical records show that the appellant was an inpatient for a period of six months. In the circumstances, we are satisfied that, in any view of the matter, loss of earnings for a period of 8 months at the rate of Rs.3,000/- per mensem should have been awarded by the Tribunal. M.A.C.A.NO.1141/2006 4 5. For loss of amenities, only an amount of Rs.8,000/- has been awarded, contends counsel. The appellant suffered 12% physical disability, as is revealed from Ext.A13 disability certificate. We have gone through the disability certificate. The disability suffered by the appellant is given in detail in that certificate. Considering the nature of the disability and the young age of the appellant, we are satisfied that Rs.8,000/- towards loss of amenities is not sufficient and that at least an amount of Rs.20,000/- can safely be reckoned as compensation for loss of amenities. 6. The next contention is that even though the appellant was an inpatient for a period of six months, no amount is seen awarded towards miscellaneous expenses like bystander, extra nourishment etc. We are satisfied, in the facts and circumstances of this case, that an amount of Rs.7,500/- can safely be fixed as compensation for miscellaneous expenses on the above counts. 7. Learned counsel strenuously contends that the Tribunal had accepted only 10% as reduction in earning capacity consequent to the disability even though the disability certificate shows 12% as the M.A.C.A.NO.1141/2006 5 disability suffered by the appellant. While adopting the multiplier - multiplicand method, it is not the extent of the physical disability that is reckoned, it is the reduction in earning capacity which is reckoned. Considering the nature of the disability described in Ext.A13 certificate and the nature of the income earning activity of the appellant, we are satisfied that the course adopted by the Tribunal in reckoning 10% as the disability does not warrant any interference. 8. The above discussions lead us to the conclusion that the appellant is entitled to the following further amounts as compensation: i. Pain and suffering :Rs.13,000/- more (25,000/- minus 12,000/-) ii. Loss of earning :Rs.12,000/- more : (3000x8 minus 12,000) iii. Loss of amenities :Rs.12,000/- more :(20,000 minus 8,000/-) iv. Miscellaneous expenses :Rs.7,500/- v. Reduction in earnings capacity consequent to disability. Total :Rs.20,400/:(3000x12x17x10/100 : minus 40,800/-) ------------------------:Rs.64,900/------------------------- M.A.C.A.NO.1141/2006 6 In all, the appellant will be entitled to an amount of Rs.64,900/- in addition to the amount already awarded by the Tribunal. Interest shall be payable on the entire amount of compensation at the rate specified by the Tribunal from the date of the petition. 9. The appeal is allowed to the above extent. **(R. BASANT) JUDGE** **(C.T. RAVIKUMAR)** **JUDGE** **sp/** M.A.C.A.NO.1141/2006 7 **R. BASANT & C.T. RAVIKUMAR, JJ.** **M.A.C.A. NO.1141/2006** **JUDGMENT** **4th March, 2009**