Thomaskutty Thomas v. K. Anandavally, The Oriental Insurance Co. Ltd. and Ramachandran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 MACA.No. 465 of 2005(C) ---------------------OPMV.63/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/CLAIMANT: --------------------------------- THOMASKUTTY THOMAS, S/O. MAMMEN THOMAS OTTATHAICKAL HOUSE, NEDUMKUNNAM VILLAGE, KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENTS: --------------- 1. K. ANANDAVALLY, KALARICKAL HOUSE, KANJIRAM P.O., THIRUVARPPU VILLAGE, KOTTAYAM. 2. THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM. 3. RAMACHANDRAN, S/O. RAMAN, MALIEKAL HOUSE, NR.OVER BRIDGE, NAGAMPADOM, KOTTAYAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.465 of 2005** ## ********************************* Dated this the 19[th] day of September, 2011 ## **JUDGMENT** ## BASANT, J. Claimant is the appellant. He, a law graduate, claimed compensation for personal injuries suffered by him in a motor accident which took place on 19.05.1997. Against a total claim of Rs.5 lakhs, the Tribunal awarded an amount of Rs.1,25,980/as compensation as per the following details: |i)|Medical expenses|:|Rs. 3,000.00| |---|---|---|---| |ii)|Transport and bystander's||| ||expenses|:|Rs. 15,000.00| |iii)|Pain and suffering|:|Rs. 15,000.00| |iv)|Disability|:|Rs. 96,480.00| ||(5360X12X10/100X15)||| |v)|Loss of amenities|:|Rs. 10,000.00| ||||---------------------| ||Total|:|Rs.1,25,980.00| ||||==========| The said amount was directed to be paid along with interest @ 9% per annum and cost. 2. The challenge in this appeal is directed only against the quantum of compensation payable. The appellant had 2 **M.A.C.A No.465 of 2005** suffered penetrating injury to his right eye. He was an inpatient for a period of 12 days. He had suffered total loss of vision of his right eye. He was employed as Law Officer in the KSCARD Bank, Regional Office, Pathanamthitta. His total monthly salary was Rs.5,363/-. He was on leave for a period of one month and 4 days. He was referred to the Medical Board at the Medical College Hospital, Kottayam and it was certified that he has loss of vision of the right eye consequent to the penetrating injury suffered by him. This disability was assessed at 30% and it was categorised as a mild disability. Ext.A10 is the certificate issued by the Medical Board. 3. We have heard the learned counsel for the appellant/claimant and respondent/insurance company. The learned counsel for the appellant assails the quantum of compensation awarded on various grounds. The learned counsel for the appellant first of all contends that the Tribunal erred in not awarding any compensation for loss of earnings though it was found that he was on leave for a period of one month and 4 days. We are certainly of the opinion that the appellant is entitled for compensation for such period of involuntary unemployment notwithstanding the fact that he may have had 3 **M.A.C.A No.465 of 2005** eligible leave to his credit. For loss of such leave, he is entitled to be compensated. 4. The learned counsel for the appellant then contends that compensation awarded under the head of loss earning capacity is painfully low. The Tribunal took note of the fact that the appellant was continuing in his employment as Law Officer with the bank and there was no immediate loss of earnings consequent to the disability suffered. The Tribunal then assumed that compensation can be awarded reckoning 10% as the extent of disability. 5. The learned counsel for the appellant contends that this approach made by the Tribunal is totally incorrect. Loss of vision of one eye can safely be assumed to result in physical disability and reduction in earnings of 30%. The learned counsel relies on the relevant entry in the Employees' Compensation Act at Part 2 Entry 26 to contend that reduction in earning capacity must have been held to be 30%. We find merit in that contention. However, the Tribunal is correct and that approach is not disputed that the appellant has not suffered actual reduction in earning capacity in his present employment consequent to the disability suffered by him. However we find 4 **M.A.C.A No.465 of 2005** merit in the contention of the learned counsel for the appellant that for the post retiral period, this disability would certainly fetter the ability of the appellant to work and earn. The learned counsel then contends that the Tribunal must have realistically awarded compensation for such post retiral reduction in earning capacity of the appellant. The appellant will have to retire at the age of 58 years. The multiplier applicable following the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121] for a person aged 55-60 years is 9. Rs.5,363/- was the income at the relevant time. Realistically providing for the future, Rs.6,000/-, we are satisfied, can be reckoned as the probable income per month for the post retiral period of the appellant – a law graduate. In coming to this conclusion, we take note of the fact that compensation is paid now for the actual loss which is likely to come up after the appellant retires at the age of 58 years. 6. The learned counsel for the appellant then contends that the amount of compensation awarded under the head of loss of amenities is totally insufficient. The appellant was aged 31 years at the time of the accident and he will have to live with this disability - (loss of vision of one eye), for the entire rest of his 5 **M.A.C.A No.465 of 2005** life. This would bring with it a lot of disability, inconvenience, discomfiture etc. in the enjoyment of life. Only an amount of Rs.10,000/- has been awarded under the head of loss of amenities and that is grossly insufficient, contends the learned counsel. 7. The learned counsel for the appellant then contends that with the reduced physical ability, the appellant will have to strain much harder to turn out the same amount of work which he was performing prior to the accident. It may be true that the employer has not reduced any income/payment as a consequence of the disability. But the appellant is duty bound and obliged to turn out the same amount of work with the reduced physical ability. While awarding compensation under the head of loss of amenities, this dimension of the loss should also be taken into account, contends the learned counsel. We are certainly satisfied that the amount of Rs.10,000/- awarded under the head of loss of amenities is grossly insufficient. Considering the nature of disability suffered by the appellant – complete loss of vision of one eye and the age of the claimant, we are satisfied that an amount of Rs.35,000/- can be fixed as the quantum of compensation payable under the head of loss of amenities taking 6 **M.A.C.A No.465 of 2005** into account all the dimension of the loss suffered. 8. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.1,28,920/- as shown below in addition to the amount already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs.6,000.00 (involuntary unemployment for a period of one month and 4 days) ii) Loss of amenities : Rs.25,000.00 : (35,000 minus Rs.10,000/-) iii) Reduction in earning capacity : Rs.97,920.00 (6000 X 12 X 9 X 30/100 = 1,94,400 minus 96,480) --------------------Total : Rs.1,28,920.00 ========= 9. We are not satisfied that the amount awarded under any other head deserves or warrants appellate interference. 10. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.1,28,920/- (Rupees One lakh twenty eight thousand nine 7 ## **M.A.C.A No.465 of 2005** hundred and twenty 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) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/