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 15TH JANUARY 2010 / 25TH POUSHA 1931 MACA.No. 830 of 2006(F) ---------------------- OPMV.239/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT : PETITIONER: ----------------------------------- BIJU, S/O. KUTTEN THAMPI, NELLIYANIKUNNEL HOUSE, ANTHINADU. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS : RESPONDENTS: --------------------------- 1. SAJAN THOMAS, S/O. T.A.THOMAS, TREEVANIKUNNEL HOUSE, RAMAPURAM. 2. JOY JOSEPH, S/O. JOSEPH, UANALIKKARA HOUSE, KOODAPPALAM P.O., RAMAPURAM. 3. THE MANAGER, NEW INDIA ASSURANCE CO. LTD., PALA BRANCH. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 830 OF 2006 ============================ DATED THIS THE 15TH DAY OF JANUARY 2010 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for the loss suffered by him as a result of injury suffered in a motor accident which took place on 9-11-1995. The claimant had suffered serious injuries. He was an inpatient for 29 days. His right leg above the knee had to be amputated as a result of the accident. He claimed that he was a headload worker – at times he need to work as an agricultural worker also . According to him, his monthly income at the relevant time was Rs.2500/-. He was referred to a Medical Board which assessed physical disability at 30% as per Ext.A9. 2. The Tribunal on an anxious consideration of all the relevant inputs came to the conclusion that the claimant is entitled to a total amount of Rs.2.65 lakhs as per the details shown below: M.A.C.A No.830 of 2006 2 1. Loss of earning(5 x 1500/-) : Rs.7,500/- 2. Miscellaneous expenses including transportation charges, extra nourishment bystander expenses, damage to clothing etc. : Rs.2,500/- 3) Medical expenses(against bills produced and taking a liberal view considering the period of hospitalisation) :Rs.10,000/- 4) Cost of artificial limb and future expenses : Rs.5,000/- 5) Pain and suffering :Rs.40,000/- 6) Compensation for disability (assessed globally) : Rs.75,000/- 7) Loss of amenities (including loss of earning power, shortened expectation of life, loss of pleasure of life etc.) : Rs.1,25,000/- -------------------------------------- Total : Rs.2,65,000/- ================ 3. The appellant claims to be aggrieved by the impugned award. What are the grounds? 4. The learned counsel for the appellant called upon to explain the nature of challenge which the appellant wants to mount against the impugned award advances various contentions in support of the challenge. M.A.C.A No.830 of 2006 3 5. First of all, it is contended that the award of an amount of Rs.2,500/- under the composite head of miscellaneous expenses is too inadequate. 29 days of hospitalistion was there. One leg had to be amputated above the knee. Bystanders had to be engaged. Extra nourishment was necessary. Taking all the circumstances into account, the award of an amount of Rs.2,500/- is grossly inadequate, contends the counsel. We find merit in that contention. We take note of the nature of the injury; requirement of a bystander and the need for extra nourishment. Taking all the relevant circumstances into account, we are satisfied that an amount of Rs.5,800/- (29x Rs.200/-) can safely be awarded under this head. 6. The learned counsel for the appellant then contends that the Tribunal did not realistically take into account the future expenses for treatment etc. Above the knee amputation had taken place and artificial limb had to be used. Artificial limb, it is evident even without any better evidence, will have to be replaced and renewed periodically. The award of an amount of Rs.5,000/- under this head is grossly insufficient, urges the counsel. We find merit in this contention. M.A.C.A No.830 of 2006 4 7. Claimant was a young man aged about 25 years at the time of the accident. Due provisions had to be made for future expenses including replacement of artificial limb. Taking all the relevant circumstances into account, we are persuaded to agree that award of an amount of Rs.15,000/- under this head would be absolutely reasonable. 8. Counsel argues that the amount awarded under the head of pain and suffering is not adequate. We are unable to agree. The amount awarded under the head of pain and suffering represents only the pain and suffering endured by him until the treatment is over. The award of an amount of Rs.40,000/- under that head, we reckon, is absolutely reasonable and just. At any rate, we are not persuaded to revise upwardly the amount of compensation awarded under the head of pain and suffering. We are of the view that adequate amount has been awarded under that head. 9. The counsel has trained all his guns against the total amount of Rs.2 lakhs awarded under the composite head of disability, loss of amenities etc. (ie. Rs.75,000/- + Rs.1,25,000/-) . The learned counsel argues that the Tribunal committed grave impropriety in not depending on the multiplicand-multiplier M.A.C.A No.830 of 2006 5 method to ascertain the compensation payable for loss of earning capacity. We are in ready agreement with the learned counsel for the appellant. Considering the nature of the disability and the age of the claimant, we are of the opinion that the Tribunal must have resorted to the multiplicand-multiplier method to arrive at the just and reasonable compensation payable for reduction in earning capacity. We are in agreement with the learned counsel for the appellant and it is trite that physical disability suffered by an individual may have two pronged reflection on the life of an individual. Such resultant disability would lead to reduction in earning capacity. It would also impair the quality of enjoyment of life. In the instant case, we cannot omit to note that the claimant was a head load/agricultural worker. Physical faculties are crucial in the performance of his work as a manual worker. It is true that the physical disability has been assessed at 30% by the Medical Board. The learned counsel for the appellant strenuously contends that in the nature of the employment which the claimant was used to, the physical disability of 30% induced by the amputation of the right leg above knee must have been reckoned at 100% as his total disability. M.A.C.A No.830 of 2006 6 10. We are unable to accept the contention that 30% physical disability must have resulted in 100% reduction in earning capacity. The theory of mitigation operates and it is trite that the victim has to arrange his activities in life in such a manner as to make use of the surviving physical faculties to his best advantage and reduce the loss for himself. We do take note of the fact that he was a worker depending on his physical faculties heavily to eek out his livelihood. What would be an appropriate percentage to be employed is the crucial question before us. 11. No better evidence is available. But we find merit in the contention of the learned counsel for the appellant that in such situation, assistance can be drawn from the schedule to the Workmen's Compensation Act. It is significant to note that the schedule to the Workmen's Compensation Act specifies the nature of disability/injury and the corresponding percentage of loss of earning capacity. Such percentage of reduction in earning capacity can be assumed even without any better evidence. We are satisfied that physical disability certified under Ext.A9 can be reckoned to have resulted in reduction in earning capacity of only 30%. In the peculiar facts and circumstances of M.A.C.A No.830 of 2006 7 the case, we are convinced that there has been above knee amputation of the right leg. We are of the opinion that assistance can safely be drawn from entry 19 in para.2 of schedule 1 of Workmen's Compensation Act and even in the absence of any better and detailed evidence, 60% can safely be assumed to be the percentage of reduction in earning capacity. The claimant was aged between 25 and 30 years and an appropriate multiplier has got to be chosen now. We are of the opinion that the second schedule to the Motor Vehicles Act which primarily applies to claim under Section 163 A can be safely relied on as a guideline when claims under Section 166 of the Motor Vehicles Act are considered. It is important to note that the multiplier specified in the second schedule is the one applicable specifically to permanent disablement and is not applicable to death case. So far as death cases are concerned, the second schedule does not place reliance on the multiplier in column 2 of Schedule and gives only the quantum of amount that can be paid as compensation. So far as the claimant/injured is concerned, we are satisfied that 18 must be reckoned as the multiplier. So reckoned, we find that an amount of Rs.1,94,400/- M.A.C.A No.830 of 2006 8 (ie. 1500 X 12 X 18 X 60/100) can be awarded under the specific head of compensation for reduction in earning capacity. 12. We now have to ascertain the amount payable as compensation for loss of amenities of life. The 25 year old young claimant will have to endure this crucially vital disability of loss of one leg above the knee for the entire remaining period of his life. Quality of enjoyment of life would be substantially impaired. Future prospects in life in terms of enjoyment of life, in terms of enjoyment of marriage prospects etc. will also be affected. In host of other circumstances, this disability is going to haunt and hurt him for the rest of his life. We are satisfied, in these circumstances, that awarding an amount of Rs.50,000/- under this head would be absolutely reasonable. In awarding this amount, we have taken into account all the relevant circumstances including the age of the claimant and the inconvenience and deprivation of the quality of life that is likely to result for the rest of his life for the unmarried claimant. 13. The above discussions lead us to the conclusion that the claimant is entitled to the following further amounts in addition to the amount already awarded by the Tribunal. M.A.C.A No.830 of 2006 9 i) Miscellaneous expenses [(200 X 29) ie. 5800 minus 2500) : Rs.3,300/- ii) Future expenses including expenses for replacement of artificial limb (Rs.15,000/- minus Rs.5000) : Rs.10,000/- iii) Compensation for reduction in earning capacity and loss of amenities (Rs.1,94,400/- plus 50000 minus Rs.2,00,000/- : Rs.44,400/- .................. Total : Rs.57,700/- .................. (Rupees Fifty seven thousand and seven hundred only) 14. Interest has been awarded by the Tribunal @ 12% per annum. That direction remains unchallenged. The amount must already have been deposited in terms of the impugned award. In these circumstances, notwithstanding the contention raised by the learned counsel for the insurance company that disproportionately higher rate of amount has been awarded under the impugned award, we are not persuaded to interfere with the said direction. However, we take note of the circumstance that there has been inordinate and hopeless delay in filing the appeal - 2170 days. We have taken a lenient view and condoned the delay with the observation that appropriate M.A.C.A No.830 of 2006 10 directions shall be issued while disposing of this appeal. We are satisfied, in these circumstances, that for the above further amount of Rs.57,700/- (Rupees Fifty seven thousand and seven hundred only), interest shall be payable only @ 7.5% per annum from the date of petition to the date of payment, excluding the period from 23.02.2000 to 23.03.2006, ie. the gap of time between the date of the impugned award and the date of filing of this appeal, during which period no interest shall be payable. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-