Vilasini R. Nair v. Sunil Antony, Joseph and The Oriental Insurance 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 TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 MACA.No. 2392 of 2008 ----------------------OPMV.3427/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER. ----------------------------------- VILASINI.R.NAIR, W/O.RAJASEKHARAN NAIR, CHANDRAVILASOM, MARAVANTHURUTHU, VAIKOM. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENT(S): RESPONDENT/RESPONDENT. ------------------------------------- 1. SUNIL ANTONY, KOCHAPPILLY HOUSE, CHEMBUMUKKU, KAKKANADU, COCHIN-30. 2. JOSEPH, S/O.KUNJU, KOCHAPPILLY HOUSE, CHEMBUMUKKU, VAZHAKKALA. 3. THE ORIENTAL INSURANCE CO. LTD, BRANCH NO.2., KOCHI-11. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C. HARI RANI,JJ** ============================== ## **M.A.C.A. NO. 2392 OF 2008-F** ============================ ## **DATED THIS THE 19TH DAY OF JANUARY 2010** ## **JUDGMENT** ## **Basant,J.** Claimant is the appellant. She suffered injuries in a motor accident which took place on 03/03/2001. She was a Mahila Pradhan Agent. She claimed that she was earning a monthly income of Rs.3,500/-. She had suffered serious injuries. She was an in-patient for a period of 51 days. Her permanent disability was got assessed by the tribunal by referring her to a medical board. The medical board reported the extent of physical disability to be 75% as per Ext.A9. A total amount of Rs.9.14 lakhs was claimed as compensation. The tribunal, on an evaluation of the materials available before it, came to the conclusion that the claimant is entitled for an amount of Rs.2,88,000/- as compensation as per the details shown below: Rs. M.A.C.A. No.2392/2008 2 1. Transportation, hospitalisation extra nourishment & damage 6,000/to clothings 2. Attendant expenses 8,500/3. Medical expenses 50,000/- 4. Loss of earnings (Rs.2,500/- x 13) 32,500/5. Pain and suffering 30,000/6. For discomforts & inconvenience 15,000/7. For functional disability 1,46,000/(basis not discernible) ------------- ## **Total 2,88,000** /- ====== 2. The said amount was directed to be paid along with interest and cost. The appellant claims to be aggrieved by the impugned award. What is the grievance? Called upon to explain the grounds on which the challenge is mounted, the learned counsel for the appellant assails the impugned award on various grounds. 3. First of all it is contended that the monthly income reckoned by the tribunal is too low. Rs.3,500/- was the monthly income claimed. The tribunal accepted Rs.2,500/-. She claims to M.A.C.A. No.2392/2008 3 be a Mahila Pradhan Agent. Better and authentic evidence about the quantum of average monthly earnings is not made available to court. In these circumstances, the tribunal drew the presumption of prudence that the claimant must have been earning atleast an amount of Rs.2,500/- p.m. We find no merit in the challenge raised by the learned counsel for the appellant. 4. The basis on which compensation is awarded under the head of functional disability is not discernible. If Rs.2,500/is reckoned as the monthly income and 50% is reckoned as the extent of reduction in earning capacity, it follows that the multiplier adopted by the tribunal is marginally less than 10. Following **Sarla Verma v. D.T.C [(2009)6 SCC 121]** , the multiplier of 14 is liable to be taken as the claimant belongs to the age group 41-45 years. Her date of birth being 19/12/1959 and the accident having taken place on 03/03/2001 we agree with the learned counsel for the appellant that 14 must have been reckoned as the multiplier by the tribunal. We agree with the learned counsel that 14 must have been reckoned as the multiplier by the Tribunal. M.A.C.A. No.2392/2008 4 5. The counsel then contends that the Medical Board to whom the Tribunal had referred the claimant had assessed the extent of physical disability to be 75%. But the counsel argues that the Tribunal surprisingly reckoned the reduction of earing capacity only at 50%. This is not justified, contends the counsel. The nature of the employment of the appellant as Mahila Pradhan Agent is such that physical movement to the prospective investors is essential. The Tribunal accepted that the appellant is unable to move about except in crutches or wheel chair. In these circumstances, the physical disability assessed by the Medical Board must have been accepted as the percentage of reduction earning capacity also, contends the counsel. 6. We have no quarrel with the proposition that physical disability cannot blindly be imported and accepted as the extent of reduction in earning capacity. The impact which physical disability causes on the earning capacity will have zealously considered and a satisfactory finding has to be entered in each case. This is a case where the employment of the appellant requires and necessitates physical movement. 75% reduction in physical faculties is assessed by the Medial Board and accepted M.A.C.A. No.2392/2008 5 by the Tribunal. We are, in these circumstances of the opinion that there was no justification in the facts of this case to reckon only 50% as the reduction earning capacity when the physical disability is competently and authentically assessed to be 75%. We take the view that 75% must have been reckoned as the extent of reduction earning capacity in the instant case. 7. The learned counsel then contends that a just and reasonable compensation has not been awarded for the loss of amenities – described as discomfort and inconvenience by the Tribunal. Physical disability suffered by an individual has two pronged reflections on the life of such a person. It may reduce the earning capacity and it would impair the quality of enjoyment of life. With 75% disability suffered and her movements having been affected considerably, such disability will have material impact on the quality of enjoyment of life of the claimant who was aged only about 41 years on the date of the accident. We agree with the learned counsel for the appellant that award of an amount of Rs.15,000/-only for compensation for loss of amenities is too low. In the facts and circumstances of this case, we are not satisfied that the amounts M.A.C.A. No.2392/2008 6 awarded under other heads warrant or require modification/upward revision. 8. The above discussions lead us to the conclusion that the claimant is entitled for the following further amounts as compensation in addition to the amounts awarded by the Tribunal as per the details shown below: 1)Reduction in Earning capacity (2500 x 12 x 75/100 x 14) : Rs.3,15,000 minus Rs.1,46,000 = Rs.1,69,000/- 2) Loss of amenities :Rs.30,000 minus Rs.15,000 = Rs. 15,000/- --------------------------Total = Rs.1,84,000/=============== ## 9. In the result: a) this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs.1,84,000/-(Rupees one lakh eighty four thousand only) in addition to the amounts awarded by the Tribunal. c)Needless to say the interest shall be payable on the M.A.C.A. No.2392/2008 7 entire amount of compensation from the date of the accident to the date of payment at the rates directed by the Tribunal. (d) All other directions of the Tribunal are upheld. The Tribunal shall issue fresh directions regarding deposit/release of the compensation. ## **R. BASANT, JUDGE** ## **M.C. HARI RANI,JUDGE** ## **ks.**