V.V. Joseph v. Adarsh Abraham & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 MACA.No. 1544 of 2004(D) -----------------------OPMV.528/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... ## APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- V.V.JOSEPH, KANDATHIL, ALSO KNOWN AS THAZHECHAYIL HOUSE, VADAYAR P.O. KOTTAYAM. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE ## RESPONDENT(S): RESPONDENTS: --------------------------- 1. ADARSH ABRAHAM, VATTANIRAPPEL HOUSE, KADUTHURUTHY P.O. KOTTAYAM DISTRICT. 2. SURESH, MATTATHVELICHIRA, VAIKOM, KOTTAYAM DISTRICT. 3. THE UNITED INDIA INSURANCE CO.LTD., KOTTAYAM. 4. THE MANAGING PARTNER, INTERLINK, 14/1818, KARUVELIPPADY, KOCHI-5. 5. JAIMU K.J. KUNNATHANATH HOUSE, CHEMGALKKUNNU P.O. TELLICHERRY. 6. THE NEW INDIA ASSURANCE CO.LTD., COCHIN. 7. D.MOHANAN, 5/340, BADHRIYA MANZIL, NORTH KALAMASSERY P.O. ERNAKULAM. 8. SAMBATH, 22/97, 6/52, MAIN ROAD, MUTHUVAPATTY, NAMACKAL, SALEM. 9. THE UNITED INDIA INSURANCE CO.LTD., KOTTAYAM. ADV. SRI.N.S.MOHAMMED USMAN FOR R6 SRI.VINOD SINGH CHERIYAN FOR R5 SRI.R.SUDHISH FOR R5 SRI.MANU ROY FOR R4 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3,R9 SRI.P.JACOB MATHEW FOR R3,R9 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1544 of 2004 ---------------------------------------Dated this the 12[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for the loss suffered by him on account of personal injuries suffered in a motor accident which took place on 08/05/1997. He claimed compensation against the driver, owner and insurer of three vehicles involved in the accident. The tribunal, by the impugned award, came to the conclusion that the owner, driver and insurer of two vehicles involved in the accident are liable to compensate the appellant equally. There is no dispute surviving on that aspect. 2. The tribunal, by the impugned award, directed payment of a total amount of Rs.2,46,160/- as compensation as per the details given below: Rs. Loss of earnings 27,360/(12 X 2,280/-) Expenses for treatment 90,000/(against bills produced) |M.A.C.A.No.1544 of 2004<br>2|| |---|---| |Bystanders expenses|3,000/-| |Transportation expenses|2,000/-| |Compensation for reduction|82,800/-| |in earning capacity|| |(Rs.2,300/- x 12 x 15 x 20/100)|| |Loss of amenities|20,000/-| |Pain and suffering|20,000/-| |Extra nourishment|1,000/-| ||----------------| |Total<br>|**2,46,160/**-| ||=======| 3. We have heard the learned counsel for the appellant and the learned counsel for both insurance companies. The challenge is directed only against the quantum of compensation allowed. First of all, it is contended that loss of earnings has been granted only for involuntary unemployment for a period of 12 months. The appellant was an in-patient for 157 days in different spells over a total period spread over three years. It is argued that compensation for loss of earnings for the entire period of three years ought to have been granted. We find no merit in this contention. He was an in-patient only for 157 days. For one full year, compensation for loss of earnings has been awarded. Such compensation for loss of earnings has been awarded on the basis of the actual income which the appellant 3 M.A.C.A.No.1544 of 2004 was earning at the relevant time. We are hence not satisfied that any further amount deserves to be awarded. 4. Coming to the medical expenses for treatment, a total amount of Rs.90,000/- has been awarded against the bills produced. The learned counsel contends that actually bills for Rs.95,000/- were produced. The tribunal had reckoned only Rs.90,000/- as payable. With the available data, we are not persuaded to interfere with the amount awarded under the head of medical expenses. 5. It is contended that the amount awarded under the head of bystanders expenses and extra nourishment is too low. The appellant was an in-patient for a period of about 157 days. We are satisfied that there is merit in the challenge raised on this ground. We are satisfied that an amount of Rs.15,700/- can be awarded under the head of bystanders expenses. We are further satisfied that an amount of Rs.5,000/- can be awarded under the head of extra nourishment. 6. Towards transport expenses, only an amount of Rs.2,000/- has been awarded. Considering the period of treatment in different spells as an in-patient, we are satisfied that an amount of Rs.5,000/- can be awarded under the head of 4 M.A.C.A.No.1544 of 2004 transportation expenses. For pain and suffering, an amount of Rs.20,000/- has been awarded. Considering the nature of the injuries and the period of hospitalisation and the total period of treatment, we are satisfied that an amount of Rs.25,000/- can be awarded under the head of pain and suffering. 7. We now come to the major challenge raised by the appellant. According to the learned counsel for the appellant, the amount awarded under the head of loss of reduction in earning capacity is totally unsatisfactory and insufficient. First of all, it is contended that only Rs.2,300/- has been reckoned as the multiplicand while ascertaining the loss of earning capacity. Following **Sarla Verma v. D.T.C [(2009)6 SCC 121]** , it is contended that due provisions must be made for future enhancement in wages. We agree with the learned counsel for the appellant. We are satisfied that for the purpose of ascertaining the loss of earning capacity Rs.3,450/- (Rs.2,300/- x 150/100) can be reckoned as the monthly income. In doing this, we are only realistically taking note of the improvement in prospects that must inevitably have been available to the appellant. Considering his age following the dictum in **Sarla** (Supra), we are satisfied that 16 and not 15 has to be reckoned 5 M.A.C.A.No.1544 of 2004 as the multiplier. The Medical Board had assessed the physical disability to be 40%. The tribunal had reckoned only 20% as the disability. Physical disability is not synonymous with reduction in earning capacity; but all the same, we note that the tribunal has actually seen the injured in court at the time of evidence and had made crucial observations. In any view of the matter, we are satisfied that 40% physical disability can safely be assumed to result in reduction in earning capacity to the extent of 30% in the facts of the instant case. The appellant is consequently entitled for enhanced compensation under that head. 8. The claimant was a person aged above 30 years at the time of the accident. He was unmarried at the time of the accident. The multiple injuries suffered and the disability which followed must certainly have impaired the quality of life of the appellant. Physical disability suffered by a person, it is now trite, has two fold reflections on his life. It reduces his earning capacity. It also impairs the quality of life. Under the composite head of loss of amenities, we take note of the impairment in the quality of life, the reduction in marriage prospects, the shortened expectation of life and all other discomfiture, disabilities, disfigurement etc. which has resulted on account of 6 M.A.C.A.No.1544 of 2004 the accident. Only an amount of Rs.20,000/- has been awarded. We are satisfied that an amount of Rs.30,000/- can be awarded under that head. 9. The above discussions lead us to the conclusion that the appellant is entitled to a total amount of Rs.3,96,204/- as per the details given below: |||Rs.| |---|---|---| |1.|Loss of earnings|27,360/-| ||(12x Rs.2,280/-)(as awarded by the tribunal)|| |2.|Medical expenses|90,000/-| ||(as awarded by the tribunal)|| |3.|Bystanders expenses|15,700/-| ||(only Rs.3,000/- awarded by the tribunal)|| |4.|Extra nourishment|5,000/-| ||(only Rs.1,000/- awarded by the tribunal)|| |5.|Transportation expenses|5,000/-| ||(Rs.2,000/- awarded by the tribunal)|| |6.|Pain and suffering|25,000/-| ||(Rs.20,000/- awarded by the tribunal)|| |7.|Reduction in earning capacity<br>|1,98,720/-| ||( Rs.2,300/- x 150/100 x 12 x|| ||16 x 30/100)|| ||(Rs.82,800/- awarded by the tribunal)|| |8.|Loss of amenities<br>|30,000/-| ||(only Rs.20,000/- awarded by the|| ||tribunal)|| |||---------------| ||**Total**<br>|**3,96,780/-**| 7 M.A.C.A.No.1544 of 2004 10. The tribunal awarded interest at the rate of 9% per annum. We are satisfied that the appellant is entitled for interest @ 8% per annum on the entire amount of compensation. 11. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a total amount of Rs.3,96,780/- (Rupees three lakhs ninety six thousand seven hundred and eighty only) in supersession of the directions issued by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation at the rate of 8% per annum from the date of the petition to the date of deposit/realisation. d) All other directions of the Tribunal are upheld including the direction that both insurance companies shall equally satisfy the award. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1544 of 2004 8 9 M.A.C.A.No.1544 of 2004 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010