Sudheer v. Dr. P. A. Lalitha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **& THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933** **MACA.No. 2680 of 2009() ----------------------OPMV.1979/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** **....................** **APPELLANT(S): PETITIONER:** **--------------------------------------------** **SUDHEER, S/O.PALLIPARAMBIL SULAIMAN, KOORIKUZHI, KAIPAMANGALAM, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT(S): RESPONDENTS:** **----------------------------------------------------** **1. DR.P.A.LALITHA, D/O.DR.MONI, 1/407, NADAKKAVU HOSPITAL MATERNITY CENTRE, NADAKKAVU CROSS ROAD, CALICUT.** **2. SUDHEESH.K.T., S/O.KUZHIVAYALIL GOPINATHAN, KAKKODI, MAKKARA P.O., KOZHIKODE.** **3. THE NEW INDIA ASSURANCE CO.LTD., TRIPURI BUILDINGS, EAST NADAKKAVU, CALICUT.** **R1 BY ADVS. SRI.A.RANJITH NARAYANAN,** **SRI.S.K.SAJU.** **R3 BY ADV. SMT.M.HEMALATHA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **R.BASANT & K.SURENDRA MOHAN, JJ.** ---------------------------------------------C.M.Appln.No.3163 of 2011 & M.A.C.A No. 2680 of 2009 ----------------------------------------------Dated this the 31[st] day of October, 2011 ## JUDGMENT ## **R.BASANT,J.** This petition is to condone the delay of 35 days in filing the appeal. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company which has been made entirely liable under the impugned award. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A No. 2680 of 2011 Claimant is the appellant, he, a person aged 25 years claimed compensation for personal injuries suffered by him in a motor accident which took place on 30.12.2003. He claimed to be an Electronic Technician earning an annual income of Rs.40,000/-. He suffered compound communited fracture of right femur and Grade II open fracture of the right tibia. He had undergone treatment as an inpatient for a period of 23 days in two spells initially. Inter locking nailing for both femur and tibia was under taken. According to the appellant he was advised to attend removal of the nails. His specific case is that he had to undergo inpatient treatment for a further period of 4 days from C.M.Appln.No.3163 of 2011 & M.A.C.A No. 2680 of 2009 2 19.5.2011 to 22.5.2011. According to him he had to incurr an expenditure of about Rs.10,000/- for such subsequent treatment. He had allegedly suffered permanent disability. Exhibit A6 disability certificate was produced to confirm that his physical disability is 19% and his reduction earning capacity is 20%. The appellant/claimant examined himself as PW1. 2. The Tribunal against a total claim of Rs.2,72,000/awarded an amount of Rs.78,500/- as compensation as per the details given below.: |Sl.<br>No.|Head|Claimed<br>Rs. Ps.|Awarded<br>Rs.<br>Ps.| |---|---|---|---| |1|Loss of earning for 5 months|40,000|10,000| |2|Transportation expenses|4,500|1,000| |3|Extra nourishment|2,500|Nil| |4|Bystanders expenses|4,500|1,700| |5|Damages to clothing|500|Nil| |6|Medical expenses|35,000|38,800| |7|Future medical expenses|15,000|Nil| |8|Pain and suffering|20,000|17,000| |9|Loss of amenities||10,000| |10|Permanent disability and loss of earning power|1,50,000|Nil| ||Total|2,72,000|78,500| ## 3. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company which has been C.M.Appln.No.3163 of 2011 & M.A.C.A No. 2680 of 2009 3 made entirely liable under the impugned award to satisfy the award. Challenge is raised only on the ground that the quantum of compensation awarded is inadequate. 4. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the Tribunal was grossly in error in assuming that the monthly income of the appellant is only Rs.2,000/-. The appellant was a skilled technician and in any view of the matter the assumption of the Tribunal that his monthly income is only Rs.2,000/- is grossly erroneous and improper contends counsel. Counsel places reliance on Clause 6 of the second schedule to the M.V. Act which has remained in force from 1994. The counsel also places reliance on the decisions of the Supreme court in **Latha Wadhwa and others v. State of Bihar and others (AIR 2001 Sc 3218)** and **Lakshmi Devi and others v. Mohammad Tabbar and another (2008 ACJ 1488)** where under the Supreme Court has enabled the drawal of a presumption that even non earning home makers and skilled manual workers can be assumed to earn an income of Rs.3,000/- per mensom. We agree with the learned counsel for the petitioner that the C.M.Appln.No.3163 of 2011 & M.A.C.A No. 2680 of 2009 4 monthly income of the appellant in 2003 can safely be assumed to be Rs.3,000/- per mensom even in the absence of any better evidence. 5. The learned counsel for the appellant submits that the Tribunal had erred grossly in awarding only an amount of Rs.38,800/- under the head of medical expenses. There was unmistakable evidence before the Tribunal to show that the appellant needed further hospitalisation and continued treatment. Before this Court documents have produced to indicate that the appellant has undergone subsequent treatment from 19.5. 2011 to 22.5.211 and had incurred expenditure to the tune of Rs.10,000/- We do not want to go through the documents produced in detail. The documents produced before the Tribunal clearly indicated that the appellant required further treatment for removal of implants. Taking all the relevant circumstances into account we are satisfied that an amount of Rs.50,000/- should have been awarded under the head of medical expenses including future medical expenses. 6. Finally the learned counsel for the appellant contends that the Tribunal erred grossly in not awarding any amount 5 ## C.M.Appln.No.3163 of 2011 & M.A.C.A No. 2680 of 2009 under the head of loss of amenities. The appellant had examined himself. The Tribunal evidently was satisfied the physical disability has been suffered and this is indicated by the award of an amount Rs.10,000/- under the head of loss of amenities. Exhibit A6 disability certificate was produced to show that the appellant had suffered physical disability to the extent of 19%. The doctor in Exhibit A6 had opined that the physical disability has reduced earning capacity by 20%. All the details about the alleged disability are given in detail in Exhibit A6 disability certificate. It is true that the author of Exhibit A6 certificate was not examined. It is also noted that the appellant did not take any steps to get his permanent disability and consequent reduction earning capacity assessed by a competent medical board. The admitted stand taken by the appellant suggests that after the assessment of disability in Exhibit A6, there will be removal of implants and subsequent disability is not competently assessed. However, taking all the relevant circumstances into account we deem it appropriate to assume even in the absence of better evidence that the appellant must have suffered reduction in physical disability and consequent reduction in earning capacity C.M.Appln.No.3163 of 2011 & M.A.C.A No. 2680 of 2009 6 to the extent of 12%. Adopting the multiplier multiplicant method the compensation payable for reduction in earning capacity has to be ascertained. 7. The above discussions lead to the conclusion that the appellant is entitled for a further amount of Rs.89,640/- as shown below as compensation in addition to the amount awarded by the Tribunal. 1. Loss of earnings :Rs.5,000/- - (Rs.3,000 X 5=15,000 minus 10,000) 2. Medical expenses :Rs.11,200/- (including future medical expenses) (50,000 minus 38,800) 3. Reduction in earning capacity (no amount awarded by the Tribunal (Rs.3000 X 12 X 17 X 12/100 ) :Rs.73,440 -------------------- Total :Rs.89,640/======= 8. We are not persuaded to interfere with the amount of compensation awarded under any other head. 9. In the result: - a. This appeal is allowed in part. - b. The appellant is found entitled to a further amount of Rs.89,640/- in addition to the amount already awarded by the Tribunal - c. We make it clear that the entire amount of C.M.Appln.No.3163 of 2011 & M.A.C.A No. 2680 of 2009 7 compensation shall carry interest at the rate and for the period as specified by the Tribunal in the impugned award. - d. We direct that proportionate cost be calculated as held in **Jeena v. Satheesh Babu (2011 (3) KLT 943).** - e. All other directions of the Tribunal are upheld. sd/- **R.BASANT (JUDGE)** sd/- **K.SURENDRA MOHAN (JUDGE)** rkc //True Copy// PA to Judge