IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 MACA.No. 534 of 2005(D) ---------------------- AGAINST THE AWARD DATED 18.12.04 IN O.P(MV) NO.1297/01 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, N.PARAVUR APPELLANT: PETITIONER/3RD RESPONDENT IN THE OP(MV) ----------------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, P.B.NO.25, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, N.PARUR, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIM SECTION AJAY VIHAR, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENTS: PETITIONER AND RESPONDENT 1 & 2 ---------------------------------------------- 1. TOMY, AGED 41 YEARS, S/O. DEVASSI, KOORAN HOUSE, NEENDOOR KARA, VADAKKEKKARA VILLAGE, PARAVUR TALUK, REPRESENTED BY HIS AGENT WIFE SHALLET, W/O. TOMY, KOORAN HOUSE, NEENDOOR KARA, VADAKKEKKARA VILLAGE, PARAVUR TALUK. 2. ANIL KUMAR, S/O. DASAPALAN, VADASSERY HOUSE, MADAPLATHURUTH KARA, MOOTHAKUNNAM VILLAGE. 3. ASHRAF A.A., ALINAAPARAMBIL HOUSE, KAITHARAM P.O., N.PARAVUR. ADV. PHILIP T.VARGHESE FOR R1 THOMAS T.VARGHESE FOR R1 SRI.B.SAJEEV KUMAR FOR R3 MS.SHUBHA N.NAIR FOR R3 MS.UMARANI.M.M FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.534 of 2005 ------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT BASANT, J. The 3rd respondent/insurer in a claim for compensation for personal injury suffered by the claimant is the appellant before us. The claimant – a person aged 41 years, allegedly employed as a fisherman claimed compensation for the personal injury suffered by him in a motor accident which occurred on 21/4/01. He claimed that he was getting a monthly income of Rs.5,000/-. He had suffered serious injuries including multiple fractures. Injury to the brain was also suffered. He had diffused cerebral oedema, sub archanoid bleeding, thin subdural haematoma on right side, fracture of occipital bone, fracture of left zygomatic arch, fracture of left squarus temporal bone, fracture middle 3rd of clavicle, fracture medial malleolus, fracture lateral malleolus, lacerated wound right medial malleolus with compound fracture, loss of vision, loss of sensation and loss of memory. He was an inpatient for a total period of 96 days in two hospitals. He has become paraplegic after the accident. He was in the ventilator for about one month after the accident. He leads a vegetable M.A.C.A No.534 of 2005 2 existence with 90% physical disability now. He is unable to get up from the bed without assistance of any other. He claimed a total amount of Rs.7 lakhs as compensation. 2. Before the Tribunal, P.Ws.1 to 3 were examined and Exts.A1 to A9 series were marked. The Tribunal, on an anxious consideration of all the relevant inputs, proceeded to pass the impugned award directing payment of a total amount of Rs.6,50,517/- as per the details given below: 1. Pain and suffering - Rs.1,00,000/- 2. Loss of amenities - Rs.1,00,000/- 3. Medical expenses - Rs.1,02,017/- 4. Disfiguration - Rs.5,000/- 5. Bystander's expenses - Rs.10,000/- 6. Future bystander's expenses - Rs.45,000/- 7. Extra nourishment - Rs.10,000/- 8. Transportation to hospital - Rs.10,000/- 9. Damage to clothing, articles etc., - Rs.500/- 10. Probable expenses for future treatment - Rs.10,000/- 11. Loss of earnings (1500 x 10) - Rs.15,000/- M.A.C.A No.534 of 2005 3 12. Loss of earning capacity (1500 x 12 x 15 x 90/100) - Rs.2,43,000/- ------------------- Total - Rs.6,50,517/- ======== 3. The appellant/insurer claims to be aggrieved by the impugned award. Requisite permission under Sec.170 of the M.V. Act was granted to the appellant/3rd respondent by the Tribunal. Called upon to explain the precise nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant submits that the appellant wants primarily to assail the quantum of compensation awarded under the heads of pain and suffering and loss of amenities. The learned counsel submits that the appellant does not want, in the circumstances of this case, to assail the amounts awarded under other heads. 4. The learned counsel for the respondent, on the contrary, asserts that the amounts awarded under the two heads referred above are absolutely justified in the facts and circumstances of this case. The learned counsel further submits that, at any rate, the total amount awarded is absolutely fair, just and reasonable and the same does not call for interference in any view of the matter. The learned counsel for the respondent submits that, as a matter of fact, the amounts awarded under various other heads M.A.C.A No.534 of 2005 4 are so totally inadequate and insufficient that it is not necessary to hair split the amounts awarded under various heads. The nature of the injuries suffered and the disability as also the expenses incurred must eloquently convey that the total amount of Rs.6,50,517/- awarded does not warrant interference, contends the counsel. For pain and suffering an amount of of Rs.1,00,000/- has been awarded. It is true that the amount is in excess of the conventional amounts awarded. But no Court can lose sight of the fact that this is a case of exceptional fact. We have already narrated the nature of injuries and the period of treatment. We have also taken note of the materials which indicate that the claimant has been virtually relegated to vegetable existence after the accident. The amount of pain, trauma and suffering endured by him easily qualifies him for receipt of an amount of Rs.1 lakh under the head `pain and suffering'. 5. We now come to the head of loss of amenities. The claimant is a person aged 41 years. Going by the average longevity of an Indian, he will have to endure the trauma of durability for a further period of 3 decades. Evidence clearly shows that he is paraplegic. He is not able to move out of bed without assistance. He is virtually left to face a life in his bed M.A.C.A No.534 of 2005 5 hereafter. A total amount of Rs.1 lakh has been awarded under the head `loss of amenities'. We do find that a further amount of Rs.5,000/- also has been awarded under the head of disfiguration. In any view of the matter, considering the consequence of the accident and the period during which the claimant can be expected to suffer disablement and the consequent inconvenience, we are satisfied that award of an amount of Rs.1 lakh, though on the higher side when viewed conventionally, does not warrant interference. 6. We do at the same time take note of the submission of the learned counsel for the respondent that the Tribunal has taken only Rs.1,500/- as the monthly earnings of a fisherman like the claimant. There is no appeal by the claimant. But the counsel points out that even for a non earning person, from 1994 the law permits and enables Courts to draw a presumption of prudence that Rs.1,250/- can be assumed to be the monthly income. So reckoned, the amount of Rs.1,500/- assumed as the notional income for a 41 year old fisherman in 2001 is grossly inadequate, points out the counsel. 7. The learned counsel for the claimant further submits that reduction in earning capacity has been reckoned only at 90%. In the light of the evidence available about the nature of M.A.C.A No.534 of 2005 6 the present disablement of the appellant, even though physical disability he is quantified at 90%, while ascertaining the quantum of compensation payable for loss/reduction in earning capacity it must have been reckoned at 100%, contends the counsel. Essential life functions may be in place and that is why the assessing medical officers assessed the extent of physical disability at 90%. It is very clear that the appellant will not be able to earn any amount putting to use such surviving physical faculties of 10%. Counsel contends that 100% disability - total physical disability, must have been accepted while computing the quantum of compensation payable under the head `loss of earning capacity'. We find merit in these contentions and are, in these circumstances, satisfied that the amount awarded under the head `pain and suffering and loss of amenities' do not warrant interference as they are not excessive. Even assuming that they are slightly on the higher side, we are not persuaded to invoke the appellate discretion inasmuch as we note that the multiplicand adopted and the extent of reduction in earning capacity reckoned by the Tribunal to quantify the loss of earning capacity is inadequate. 8. We feel that the award of the amount of Rs.6,50,517/- with interest only @ 7% per annum is grossly reasonable, fair M.A.C.A No.534 of 2005 7 and just. The award does not, in these circumstances, warrant interference on any other heads. 9. This appeal is, in these circumstances, dismissed. 10. The learned counsel for the 1st respondent/claimant submits that marriage of one of the daughters of the 1st respondent is scheduled to take place on 07.05.09 and in these circumstances the claimants may be permitted to withdraw the amount of Rs.1 lakh in deposit. That is a prayer which ought to be made before the Tribunal and the Tribunal after considering all the relevant inputs must pass appropriate orders in the circumstances of the case. 11. We direct that if such an application is filed, the Tribunal has to dispose of the same forthwith - within a period of 10 days of filing of such application. 12. Hand over a copy of this judgment to the learned counsel for the 1st respondent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-