Venu K.K. v. E.M. Tito and Others

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. 867 of 2005() ---------------------MVOP.1332/1995 of MACT, IRINJALAKUDA .................... ## APPELLANT/PETITIONER ---------------------------------- VENU K.K., S/O.KRISHNAN @ KOCHUPILLA, KUNNATHOLIAL HOUSE, P.O.CHEVOOR, THRISSUR. BY ADV. SRI.T.K.KOSHY ## RESPONDENTS/RESPONDENTS -------------------------- 1. E.M.TITO, S/O.MANI, ELUVINGAL HOUSE, POTTA DESOM, CHALAKUDY. 2. MANAGING DIRECTOR, - M/S.MIDLAND PLANTERS, CONSORTIUM AND SERVICE LTD., 5TH FLOOR, COLLIES ESTATE, M.G.ROAD, KOCHI-16. 3. THE ORIENTAL INSURANCE CO LTD., CHALAKUDY BRANCH, CHALAKUDY. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.867 of 2005 ---------------------------------------Dated this the 11[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 09/07/1995. The claimant was aged 22 years when he met with the accident. He is a goldsmith by profession. He suffered multiple fractures. It is pointed out that he had suffered as many as eight fractures. He was an in-patient for a period of 20 days. He had to continue his treatment thereafter. We have evidence to indicate that he had continued treatment for a reasonably long period of time thereafter. He was permitted to do weight bearing without crutches only by the end of the first year of treatment. He suffered disability as a result of the accident. He had pain and stiffness of the left ankle. He suffered inability to run. There was stiffness to the right hip joint. He was unable to sit cross legged on floor. The doctor who examined him certified the disability to be 20%. The tribunal, against a claim of Rs.5,00,000/- awarded an amount of 2 M.A.C.A.No.867 of 2005 Rs.82,665/- as compensation along with interest at the rate of 6% per annum as per the details given below. |**_S.No_**|**_Head_**|**_Award Rs._**| |---|---|---| |1.|Loss of earnings &Partial loss of earnings|6,000/- (Rs.1,500 x 4)| |2.|Transportation expenses|300/-| |3.|Extra nourishment & Attendant's expenses|2,000/-| |4.|Medical expenses|20,965/-| ||**_Part-II_**|| |6.|Pain and suffering|15,000/-| |7.|Loss of amenities to life|5,000/-| |8.|Permanent disability|30,600/-<br>(Rs.1,500/- x 12 x 10%<br>x 17)| |9.|Loss of earning power|--| |10.|Removal of implants|3,000/-| ||**Total**|**82,665/-**| 2. We have heard the learned counsel for the appellant/claimant and the learned counsel for the Insurance Company. Before us, the challenge is only directed against the quantum of compensation awarded. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the monthly income of the appellant reckoned by the tribunal both for ascertaining loss of earnings and for loss of earning capacity is only Rs.1,500/- per month. He was aged 22 years at the relevant time. He was a goldsmith. The tribunal has 3 M.A.C.A.No.867 of 2005 accepted that he is a Goldsmith. The amount of Rs.1,500/assumed by the tribunal is too inadequate and insufficient, contends counsel. According to the appellant, he was earning an income of Rs.3,000/- per month. The learned counsel for the appellant relies on the presumption of prudence available in clause 6 of the second schedule which permits tribunals to assume that even a non-earning person can be assumed to earn Rs.1,250/- per month. The appellant was a goldsmith. The possible additions in future must also be taken into account while considering the permanent disability by using multipliermultiplicand method, points out the counsel. 3. The learned counsel for the appellant further points out that in **Latha Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** the Supreme Court has held that even for a non-earning home maker/housewife, the monetary equivalent of the services can be assumed to be Rs.3,000/- per month. 4. We take into account all the relevant circumstances. We are satisfied that an amount of Rs.3,000/- can be reckoned as the monthly income of the appellant/claimant. 4 M.A.C.A.No.867 of 2005 5. The appellant was an in-patient for twenty days. He had continued as an out-patient thereafter for a long period of time. Taking all these circumstances into account, we are satisfied that a total amount of Rs.3,000/- can be awarded under the composite head of extra nourishment and bystander expenses. Transportation expenses has been awarded only at Rs.300/-. We are satisfied, considering the nature and period of treatment that an amount of Rs.1,000/- can be awarded under the head of transportation expenses. 6. For medical expenses, an amount of Rs.20,965/- has been awarded. The learned counsel argues that the tribunals have to realistically take note of the fact that the claimants like the appellant herein cannot be expected to maintain meticulous accounts duly supported by vouchers to prove treatment expenses. Reasonable inferences ought to have been drawn from the totality of the circumstances, contends counsel. We are satisfied that an amount of Rs.27,500/- can be awarded under the head of medical expenses instead of Rs.20,965/awarded by the tribunal. We further note that the tribunal has awarded a further amount of Rs.3,000/- for removal of implants 5 M.A.C.A.No.867 of 2005 under the impugned award. 7. For pain and suffering Rs.15,000/- has been awarded. Considering the nature of the multiple injuries, the period of hospitalisation and the continued treatment after discharge from the hospital, we are satisfied that an amount of Rs.20,000/(Rs.5,000/- more) can be awarded under the head of pain and suffering. We now come to the compensation awarded as a consequence of permanent disability suffered. The permanent disability suffered by a person has two folded reflections on his life. It reduces his earning capacity. It also impairs and reduces the quality of life which such a disabled person can thereafter aspire to live. For both dimensions of the loss, the victim is entitled to be compensated. 8. Coming to the reduction in earning capacity, the tribunal awarded only an amount of Rs.30,600/- as compensation (Rs.1,500/- x 12 x 10/100 x 17). The learned counsel for the appellant submits that the appellant has suffered 20% disability. In fact, the reduction in earning capacity can be reckoned as more considering his employment as a Goldsmith. He is unable now to sit cross legged on floor. Stiffness of the right hip joint 6 M.A.C.A.No.867 of 2005 also disables him from pursuing his activity efficiently. The tribunal, after noting that his physical disability is 20% reckoned only 10% as the reduction in earning capacity. In the facts and circumstances of the case, we agree that 20% can be accepted as reduction in earning capacity. 17 alone is accepted as the multiplier by the tribunal. Going by the dictum in **Sarla Verma v. D.T.C [(2009)6 SCC 121]** the appellant is correct in his contention that 18 should have been taken as the multiplier. 9. For loss of amenities, only an amount of Rs.5,000/has been awarded. Under this head, we must take into account the disability of 20% suffered by the appellant, that too, at the age of 22 years. We have to take into account all the consequent difficulties arising from the disability. It impairs the quality of enjoyment of life. It shortens the life expectancy. It impairs the ability of the appellant, an unmarried person at the time of the accident, to secure a sufficiently good alliance which he would have otherwise been able to secure. Taking all the ramifications of the loss of amenities to life, we are satisfied that an amount of Rs.30,000/- (Rs.25,000/- more) can be awarded under the head of loss of amenities. 7 M.A.C.A.No.867 of 2005 10. The above discussions lead us to the conclusion that the appellant is entitled to the following further amounts in addition to the amounts already awarded by the tribunal. |||Rs.| |---|---|---| |i)|Loss of earnings|30,000/-| ||[Rs.36,000/-(Rs.3,000/- x 12)|| ||minus Rs.6,000/-)]|| |ii)|Transportation expenses|700/-| ||(Rs.1,000/- minus Rs.300/-)|| |iii)|Extra nourishment and|1,000/-| ||bystander expenses|| ||(Rs.3,000/- minus Rs.2,000/-)|| |iv)|Medical expenses|6,535/-| ||(Rs.27,500/- minus Rs.20,965/-)|| |v)|Pain and suffering|5,000/-| ||(Rs.20,000/- minus Rs.15,000/-)|| |vi)|Loss of amenities<br>|25,000/-| ||(Rs.30,000/- minus Rs.5,000/-)|| |vii)|Reduction in earning capacity|99,000/-| ||[1,29,600/- (3,000/- x 12 x 20/100|| ||x 18) minus Rs.30,600/-)|| |||----------------| ||**Total**<br>|**1,67,235/-**| |||**======**| |8.|Interest has been awarded only at|the rate of 6% per| |annum. The learned counsel for the appellant contends and we||| |agree that|the interest rate deserves to be enhanced. We direct|| 8 M.A.C.A.No.867 of 2005 that interest is to be paid at the rate of 7.5% per annum. 9. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of **Rs.1,67,235/-** (One lakh sixty seven thousand two hundred and thirty five 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 petition to the date of deposit/realisation. d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.867 of 2005 9 10 M.A.C.A.No.867 of 2005 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010