IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 MACA.No. 2159 of 2005() ----------------------- OPMV.1664/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ----------------------------------- JAYAN, S/O. RAJAPPAN, USHA SADANAM, NEAR PALLIPURAM CHURCH, NATTASSERY KARA, PERUMBAIKKADU VILLAGE & P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) RESPONDENTS: --------------- 1. SAJI. M., S/O. MADHAVAN, UMBUKATTU HOUSE, NEAR PALLIPPURAM CHURCH NATTASSERY KARA, PERUMBAIKKADU S.H. MOUNT P.O., KOTTAYAM. 2. PUSHPAKUMAR, S/O. MADHAVAN PILLAI, SOMAVILASAM HOUSE, KUMARANALLUR S.H. MOUNT P.O., KOTTAYAM. 3. THE NATIONAL INSURANCE CO.LTD., THRIPPUNITHURA P.O. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A.No.2159 of 2005 ---------------------------------------- Dated this the 25th day of August 2011 J U D G M E N T R.BASANT,J Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 04/05/2000. He claimed a total amount of Rs.2,00,000/- as compensation. The tribunal, as per the impugned award, directed payment of an amount of Rs.15,500/- as per details given below: Sl.No . Head of the claim Amount awarded (Rs.) 1 Loss of earning 5,000 (2500 x 2) 2 Transport to hospital Nil 3 Damage to clothing and articles Nil 4 Bystander expenses Nil 5 Extra nourishment Nil 6 Hospital expenses 500 7 pain and suffering 7,000 8 Compensation for disability Nil 9 Loss of earning power Nil 10 Loss of amenities of life 3,000 Total 15,500 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The M.A.C.A.No.2159 of 2005 2 challenge is directed only against the quantum of compensation awarded. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds: 3. The appellant had suffered injuries including fracture of the left clavicle. He was not an in-patient. He underwent treatment as an out patient. He was involuntarily unemployed for some period of time consequent to the accident. He had allegedly suffered permanent disability on account of the clavicle fracture. The doctor who examined him had issued a certificate Ext.A9 which suggested that the physical disability is assessed to be 7%. The author of that certificate was examined in court to prove the same. The tribunal did not evidently accept that the disability has any impact on the earning capacity of the appellant, who said to be an artist (hoardings painter). 4. The learned counsel for the appellant first of all contends that the tribunal had erred grossly in reckoning the monthly income at Rs.2,500/- only. The learned counsel argues relying on clause 6 of the second schedule schedule and the dicta in Lata Wadhwa and Others v. State of Bihar and Others [2001 SC 3218] and Laxmi Devi v. Mohammad M.A.C.A.No.2159 of 2005 3 Tabbar [2008 ACJ 1488] that in any view of the matter Rs.3,000/- must have been reckoned as the monthly income. We agree with the learned counsel. We are unable to agree that the fracture of the clavicle would have caused involuntary unemployment for any period exceeding two months. 5. We find merit in the contention of the learned counsel for the appellant that though the appellant may not have been admitted as an in-patient, he must have incurred medical and miscellaneous expenditure in connection with his treatment. For transport to hospital, damage to clothing, for help and assistance of another, extra nourishment etc. he must have incurred expenditure. The tribunal only awarded an amount of Rs.500/- as hospital expenses. We are satisfied that for medical and miscellaneous expenses, a higher amount of compensation is liable to be awarded. For pain and suffering, the tribunal had awarded only Rs.7,000/-. The learned counsel for the appellant submits that the amount awarded is unrealistic. The tribunal has not taken note of the fracture of the clavicle that is suffered by the appellant. Finally, it is contended that for loss of amenities only an amount of Rs.3,000/- has been awarded. No amount has been awarded under the head of loss of earning power. Though M.A.C.A.No.2159 of 2005 4 Ext.A9 certificate suggests that 7% disability has resulted, we are unable to accept in the absence of better proof that the same must have resulted in any reduction in earning capacity. We are satisfied that a higher amount of compensation should have been awarded under the head of loss of amenities considering the nature of the injury, the treatment undergone, the details of which are available from Ext.A9 certificate and the indications of physical disability available from the evidence placed before Court. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.13,000/- as shown below in addition to the amount awarded by the tribunal. i) Loss of earnings Rs.1,000/- (Rs.3,000/- x 2 months minus Rs.5,000/-) ii) Medical and miscellaneous Rs.2,500/- (Rs.3,000/- minus Rs.500/-) iii) pain and suffering Rs.5,000/- (Rs.12,000/- minus Rs.7,000/-) iv) Loss of amenities Rs.4,500/- (Rs.7,500/- minus Rs.3,000/-) ------------------ Total Rs.13,000/- ======== M.A.C.A.No.2159 of 2005 5 7. We are satisfied that the impugned award does not warrant appellate interference on any other ground. 8. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of Rs.13,000/- (Rupees thirteen thousand 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 at the rate and for the period as specified by the tribunal with the rider that no interest shall be payable for the period of 334 days - the period of delay in preferring this appeal. 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.2159 of 2005 6 M.A.C.A.No.2159 of 2005 7 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010