IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 MACA.No. 1987 of 2007() ----------------------- O.P.(MV)NO.2131/98 OF PRINCIPAL M.A.C.T.KOZHIKODE APPELLANT(S): APPELLANTS/SUPPLI PETITIONERS 2 & 3 IN THE OP(MV): --------------------------------------------------- 1. K.S. ISSAC, S/O. SAMUAL, 'SINAI', RARICHAN ROAD, ERANHIPALAM POST,KOZHIKODE 2. MIRANDA MINTE, W/O. K.M.ROY, 'SITHARA', I.M.A. HALL ROAD, NADAKKAVU POST, KOZHIKODE. BY ADV. SRI.THOMAS ANTONY RESPONDENTS/RESPONDENTS IN THE OP(MV): ----------------------------------------- 1. P.M. AMMED, S/O. P.M.KUNHABDULLA, EROTH HOUSE, PALERY POST, KUTTIARY, KOZHIKODE. 2. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, CITY BRANCH NO.2, 2ND FLOOR, SEEMA TOWER, BANK ROAD, KAVOOR. ADV. SRI.SUNNY MATHEW FOR R1 ADV.SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A.No.1987 of 2007 ---------------------------------------- Dated this the 8th day of August 2011 J U D G M E N T R.BASANT,J Legal heirs of a claimant/deceased are the appellants. The deceased woman was aged 47 years at the relevant time. She suffered injuries in a motor accident which took place on 07/03/1998. She was an Upper Division Clerk in Government Service. She suffered serious injuries consequent to the insured vehicle running over her left foot causing crushed injuries. Finally, her bone foot and toes were amputated. She continued as an in-patient for about 71 days. She was initially treated at the Medical College Hospital, Kozhikode. Thereafter, she was shifted to the Specialists hospital, Ernakulam for microvascular surgery. She had continued on leave for a long period. She expired during the pendency of the proceedings. Her husband and daughter were impleaded in her place. She had suffered permanent disability to the tune of 26%. This was certified by the medical board at the Medical College Hospital, Kozhikode. M.A.C.A.No.1987 of 2007 2 2. Against a claim of Rs.5,00,000/-, the tribunal proceeded to award only an amount of Rs.2,10,740/- as per the details given in paragraph 11 which we extract below: Medical treatment with bills : Rs.1,18,628/- Incidental charge during hospital : “ 8,000/- stay for 71 days Partial loss of salary : “ 18,552/- Orthopediac disability assessed by : fixing notional income of Rs.1,000/- : “ 40,560/- multiplier is 13. 12,000 x 13 x 26 100 Transportation : “ 5,000/- pain and suffering : “ 18,000/- Disfiguration of foot : “ 2,000/- ------------------- Total : Rs.2,10,740/- ======== The said amount was directed to be paid along with interest at the rate of 6% per annum. 3. We have heard the learned counsel for the appellants and the learned counsel for the insurance company. The learned counsel for the appellants assails the impugned award on various grounds. M.A.C.A.No.1987 of 2007 3 4. First of all, the learned counsel for the appellants contends that the amount awarded under the head of medical treatment including incidental charges (Rs.1,26,628/-) is grossly inadequate. Bills for Rs.1,18,628/- were produced. It would be idle in a case like the instant one for the tribunal to expect injured persons and their relatives to maintain meticulous accounts supported by vouchers. Reasonable inferences ought to have been drawn and reasonable amounts must have been awarded as compensation taking into account the period of hospitalisation, venues and hospitals where treatments were given and also the nature of the treatment given. She had to undergo as many as six surgeries and this is borne out by medical records, points out the counsel. 5. It is then contended that no amounts specifically has been awarded under the head of expenses for bystanders. Though treatment as in-patient continued for 71 days and the injured had to continue treatment virtually as an invalid for a long period of time after discharge from the hospital, no amount has been awarded under the head of extra nourishment also, points out the learned counsel for the appellants. M.A.C.A.No.1987 of 2007 4 6. It is then contended that claimant/injured was constrained to be on leave for a long period of time. The tribunal had noted that if the claimant had continued to be working, she could have earned an amount of Rs.1,16,083/- during the period of her absence by way of her income from salary. However, the tribunal took note of the fact that she had received an amount of Rs.50,126/- as leave salary during the period. After adverting to these details, the tribunal jumped to the conclusion that only an amount of Rs.18,552/- is payable as partial loss of salary. The learned counsel for the appellants submits that loss of actual salary including loss of leave must have been taken into account to ascertain the quantum of loss suffered on account of involuntary unemployment. The loss of leave must also have been taken into account while considering the loss suffered. The learned counsel for the appellants argues and we agree that the total amount of Rs.1,16,083/- found to be the loss suffered must have been entirely awarded by the tribunal under the head of loss of salary. 7. The medical board's certificate shows that the deceased had suffered disability to the tune of 26%. While in M.A.C.A.No.1987 of 2007 5 employment, she may not have suffered any pecuniary loss on account of such physical disability. The physical disability may not have had direct reflection on her earning capacity till she retires from service. Even during this period, she must have been compelled to be on leave because of her physical disability. She may have been compelled to put an extra effort to cover up her deficiency in her physical capability. At any rate, compensation must have been awarded for possible reduction in earning capacity after the deceased attained the age of 55 years. In the post retiral employment, that disability must have hurt her directly and for this consequent reduction in earning capacity, appropriate compensation must have been awarded, contends counsel. 8. The learned counsel for the appellants then contends that under the head of pain and suffering, only an amount of Rs.18,000/- has been awarded and this is not adequate compensation for the trauma endured by her as in-patient for 71 days and later as out-patient. The nature of the injury and the nature of the treatment undergone as an in-patient and out- patient including six surgeries have not been realistically taken M.A.C.A.No.1987 of 2007 6 into account by the tribunal while awarding compensation of only Rs.18,000/- under the head of pain and suffering, contends counsel. 9. Finally, the learned counsel for the appellants contends that the tribunal has grossly erred in not awarding any amount as compensation under the head of loss of amenities. It is an omission on the part of the tribunal not to consider the impairment in the quality of life of the deceased as a result of the accident and the disability suffered. There was disfiguration of the foot and only an amount of Rs.2,000/- has been awarded under that head. This is also grossly inadequate, contends counsel. 10. We have considered all the relevant inputs. We are satisfied that the deceased was certainly entitled for a higher amount of compensation under the various heads. We are satisfied that the appellants are entitled for a total further amount of Rs.1,82,503/- as per the details given below: Medical expenses : Rs.8,372/- (Rs.1,35,000/- minus Rs.1,26,628/-) Loss of earnings : Rs.97,531/- (loss of salary and leave) (Rs.1,16,083/- minus Rs.18,552/-) M.A.C.A.No.1987 of 2007 7 Bystander's expenses : Rs.7,000/- (71 days in the hospital thereafter while undergoing treatment as an out-patient) (Rs.15,000/- minus Rs.8,000/- Extra nourishment : Rs.9,000/- Pain and suffering : Rs.12,000/- (Rs.30,000/- minus Rs.18,000/-) Loss of amenities including : Rs.33,000/- disfiguration (Rs.35,000/- minus Rs.2,000/-) Reduction in earning capacity : Rs.15,600/- [Rs.56,160/- (Rs.2,000/- x 12 x 9 x 26/100) minus Rs.40,560/-] Total : Rs.1,82,503/- 11. The learned counsel for the appellants prays and we agree that interest awarded at the rate of 6% per annum is too inadequate. We are satisfied that interest can be awarded at the rate of 7.5% per annum from the date of the petition to the date of payment/realisation. 12. In the result, a) This appeal is allowed in part. b) Appellants are found entitled to a further amount of Rs.1,82,503/- (One lakh eighty two thousand five hundred and M.A.C.A.No.1987 of 2007 8 three only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation @ 7.5 % per annum from the date of the claim to the date of payment/realisation. d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge M.A.C.A.No.1987 of 2007 9 M.A.C.A.No.1987 of 2007 10 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010