V.K. George v. Reji M. Daniel, Annamma Jacob & The New India Assurance 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 WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 MACA.No. 285 of 2011(F) ---------------------O.P(MV) No.1530/2005 OF M.A.C.T, PERUMBAVOOR APPELLANT : PETITIONER ------------------------ V.K.GEORGE, AGED 40 YEARS, S/O.KOCHAPPU, VADAKUMCHERY HOUSE, MATTOOR P.O., KALADY, ALUVA TALUK. BY ADV. SRI.P.P.BIJU ## RESPONDENTS : RESPONDENTS --------------- 1. REJI M.DANIEL, S/O.DANIEL, MACHERYPUTHENPURAYIL HOUSE, WEST VENGOLA P.O., KUNNATHUNADU TALUK, PIN-683 556. 2. ANNAMMA JACOB, W/O.JACOB, THEPPALA HOUSE, WEST VENGOLA P.O., KUNNATHUNADU TALUK, PIN-683556. 3. THE NEW INDIA ASSURANCE CO. LTD., PERUMBAVOOR BRANCH, ST.JOSEPH'S BUILDING, A.M.ROAD, PERUMBAVOOR P.O., PIN-683542. ADV. SRI.VIJU THOMAS FOR R3 MEENA JOHN.M FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.285 of 2011-F ******************************* Dated this the 24[th] day of August, 2011 ## **JUDGMENT** ## BASANT, J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him as a result of the motor accident which took place on 09.04.2005. He had suffered 3 fractures - of right hip, right acetabulam and right patella. He was inpatient in 3 spells for a total period of 30 days. He was initially treated at Kottakkal. Subsequently he was carried to the Lissie hospital, Ernakulam to continue treatment. He was inpatient at Ernakulam in 2 spells. He had allegedly suffered permanent disability. Ext.A10 disability certificate was issued from the Taluk Head Quarters Hospital, Perumbavur. The same was proved by PW1, the doctor. The Tribunal accepted the assessment of disability at 7% in Ext.A10. The Tribunal reckoned the same as the percentage of reduction in earning capacity. The Tribunal, in these circumstances, proceeded to award an amount of Rs.99,695/- as compensation as per the details given in para.13, which we extract below: 2 **M.A.C.A No.285 of 2011-F** |Sl.No.|Head of claims|Amount awarded| |---|---|---| |1|Loss of earning|Rs. 9,000.00<br>(3000 X 3)| |2|Treatment expenses|Rs.18,145.00| |3|Transportation expenses|Rs. 2,500.00| |4|Pain and suffering|Rs.20,000.00| |5|Loss of amenities|Rs.10,000.00| |6|Attendant's charges|Rs. 1,000.00| |7|Extra nourishment|Rs. 1,000.00| |8|Damage to clothing and other<br>articles|Rs. 250.00| |9|Disability|Rs.37,800.00<br>(3000 X 12 X 15 X<br>7/100)| ||Total|Rs.99,695.00| The said amount was directed to be paid along with interest @ 8% per annum. 2. We have heard the arguments of the learned counsel for the appellant/claimant and the respondent/insurance company. The challenge is limited to the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. 3 ## **M.A.C.A No.285 of 2011-F** 4. First of all it is contended that the quantum of monthly income assumed by the Tribunal is painfully low. The appellant was a cleaner in a lorry. His monthly income is stated to be Rs.5,000/-. The accident had taken place in 2005. Even in the absence of better evidence, a higher monthly income ought to have been taken by the Tribunal, contends the learned counsel. The counsel further submits that the Tribunal had not realistically evaluated the period of involuntary unemployment. Actually even now the appellant is unable to pursue his normal avocation, submits the learned counsel for the appellant. He had continued his treatment as an inpatient till 28.05.2005. In any view of the matter, the Tribunal ought to have realistically noted that the appellant must have been involuntarily unemployed for a longer period. The learned counsel submits that the Tribunal ought to have taken note of the presumption of prudence under clause 6 of the Second Schedule which came into force as early as in 1994. The learned counsel also points out the decision of the Supreme Court in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] , which permits Tribunals to assume that a non earning home maker/house wife can also be assumed to earn an income of Rs.3,000/- per mensem. Taking all the relevant inputs ## **M.A.C.A No.285 of 2011-F** 4 into account, we are satisfied that an amount of Rs.4,000/- can be reckoned as the monthly income of the appellant and he can be assumed to have been involuntarily unemployed for a period of 5 months. We come to this conclusion about period of loss of earnings looking at the nature of injuries as also the period of treatment as an inpatient, the last spell of which came to an end only on 28.05.2005. 5. The learned counsel for the appellant then contends that the transportation expenses granted at Rs.2,500/- is too low. Even if all the receipts and vouchers produced were not accepted in toto, the Tribunal should have taken note of the fact that the appellant was initially treated at Kottakkal and subsequently he had to undergo treatment at Ernakulam as inpatient in 2 spells. We are satisfied that the amount of compensation awarded under the head of transportation expenses can be enhanced. For pain and suffering, only an amount of Rs.20,000/- has been awarded. Taking into account all the relevant inputs including the nature of injuries, the period of treatment as an inpatient and the nature of surgical procedures undertaken (including 2 surgeries under general anaesthesia) we are satisfied that the amount awarded under the head of pain 5 **M.A.C.A No.285 of 2011-F** and suffering can be raised to Rs.25,000/-. 6. Even though the appellant was an inpatient for a period of 30 days, 28 days being in the hospital at Ernakulam only an amount of Rs.2,000/- has been awarded under the composite head of attendant's charges and extra nourishment. We are satisfied that an amount of Rs.200/- per day can be fixed as the composite compensation payable under the heads of attendant's charges and extra nourishment for the period of hospitalisation. 7. Finally the learned counsel for the appellant contends that the amount of compensation awarded under the head of reduction in earning capacity (called `disability' by the Tribunal) by the multiplier-multiplicand method is not adequate. The Tribunal had reckoned 15 as the multiplier. The appellant is shown to be a person in the age group of 30-35 years. 16, we agree, must have been reckoned as the multiplier considering the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121]. 7% is the physical disability proved by PW1 and Ext.A10. The Tribunal had accepted the same as the reduction in earning capacity also. In these circumstances, the challenge against the extent of reduction in earning capacity is 6 **M.A.C.A No.285 of 2011-F** not found to be acceptable. 8. The appellant, a young man aged about 34 years, had suffered the disability. Only an amount of Rs.10,000/- has been awarded under the head of loss of amenities. The learned counsel for the appellant submits that the appellant is left to suffer the consequence of the disability even now. Annexure-I is produced before Court to show that even now the appellant is constrained to continue treatment. Taking all the relevant circumstances into account, we are satisfied that the amount awarded under the head of loss of amenities can also be enhanced. We take note of all the dimensions of the loss of amenities consequent to the disability suffered. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.48,460/- as shown below in addition to the amount already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs.11,000.00 [(4,000 X 5=20,000) minus Rs.9,000/-] ii) Transportation expenses : Rs. 2,500.00 (5,000 minus 2,500) iii) Pain and suffering : Rs. 5,000.00 (25,000 minus 20,000) 7 **M.A.C.A No.285 of 2011-F** iv) Bystander's expenses and extra nourishment : Rs. 4,000.00 (30days X Rs.200=Rs.6,000 minus Rs.2,000/-) v) Reduction in earning capacity : Rs.15,960.00 (4000 X 12 X 16 X 7/100 = 53,760 minus 37,800) vi) Loss of amenities : Rs.10,000.00 (20,000 minus 10,000) ------------------Total : Rs.48,460.00 ======== 10. We are not persuaded to accept the challenge raised on the other grounds. ## 11. 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.48,460/- (Rupees Forty eight thousand four hundred and sixty 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; 8 **M.A.C.A No.285 of 2011-F** d) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** rtr/