IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 MACA.No. 1410 of 2006() ----------------------------------- OP(MV)NO.147/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER --------------------------------------- GOKUL E., S/O. EASWARAN UNNI, 12/374, EDAKUNNY MADHAM, WARRIAM ROAD, THRISSUR. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE BY ADV. SRI.SAJU.S.A RESPONDENT(S): RESPONDENTS ---------------------------------------------------- * 1. P.MOHANKUMAR, S/O. PALANIAPPAN, D.NO.1-EE, CHINNAMANIYAMMAN KOVIL, KONGANAPURAM P.O., SANKERI T., SALAM DISTRICT.(DELETED) * 2. K.R.RAJU, S/O. RAMASWAMI, VAIKUNDAM ROAD, KONGANAPURAM P.O., SANKERI, SALAM DISTRICT.(DELETED) 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, 4/23-G, NEW IDAPPADI ROAD, SANKERI, SALAM DISTRICT. *R1 & R2 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 7/10/2009 IN IA.NO.1512/2009. R3 BY ADV. SRI.P.SANKARANKUTTY NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R.BASANT & N.K.BALAKRISHNAN, JJ. ----------------------------------------- C.M.App.No.1527 OF 2006 & M.A.C.A No.1410 OF 2006 ---------------------------------------- Dated this the 26th day of July, 2011 ORDER/JUDGMENT BASANT,J. C.M.App.No.1527 OF 2006: This petition is to condone the delay of 156 days in filing the appeal. There is no appearance for any of the respondent. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A No.1410 OF 2006: 2. Claimant is the appellant. He claimed compensation for the personal injuries suffered by him in a motor vehicle accident that took place on 24.6.2000. Against a total amount of Rs.5,50,000/- claimed by the appellant the Tribunal awarded an amount of Rs.2,74,375/- as per the details shown below: 1. Loss of income : Rs.9,000/-(15000x6) 2. Transport of hospital : Rs.2,000/- 3. Extra nourishment : Rs.1,000/- 4. Damage to clothing : Rs. 250/- C.M.App.No.1527 OF 2006 & M.A.C.A No.1410 OF 2006 2 5. Medical expense : Rs. 1,63,925/- 6. Bystander : Rs. 2,000/- 7. Pain and suffering : Rs. 20,000/- 8. Loss of amenities : Rs. 15,000/- 9.Disability : Rs. 61,200/- (15000x12x20/100x17) ------------------ Total Rs.2,74,375/- =========== 3. The Insurance Company has been made liable. Challenge before us is only against the quantum of compensation awarded. The learned counsel for the appellants submits that the Tribunal has not considered the claim realistically. The learned counsel for the appellant points out that the appellant was a waiter in hotel Taj Residency, Ernakulam. Salary certificate was produced by him to confirm his assertion that he was getting a monthly gross income of Rs.3,023/-. It is the case of the appellant that for a waiter in such a reputed company, income by way of tips was also was very high. The Tribunal did not accept the salary certificate issued by the Personnel Officer of the Taj Residency. The Tribunal took into account only Rs.1,500/- as the monthly income. This is unrealistic. The Tribunal ought to C.M.App.No.1527 OF 2006 & M.A.C.A No.1410 OF 2006 3 have taken a higher income including tips, submits the learned counsel. The appellant had suffered were serious injuries. He was an inpatient in three different hospitals for a total period of 62 days. Bills for medical expenses do show that an amount exceeding Rs.1,63,000/- was incurred as expenditure. The disability certificate issued by PW1, the Doctor, showed that the appellant had suffered disability to the extent of 52%. The appellant suffered Grade-3 compound fracture shaft of femur right, basal cervical fracture neck of femur right, fracture shaft of ulna right, comminuted fracture base of first metacarpal right hand, and brachial plexus injury right upper limb. He had undergone surgery. He was an inpatient for a total period of 62 days. He continued as an outpatient also. The learned counsel contends that the quantum of compensation awarded under the head of pain and suffering (Rs.20,000/-) is too low. The counsel further submits that the Tribunal after the evidence tendered through PW1 and the disability certificate marked by him which showed that the disability suffered was 52%, erred grossly in awarding only an amount of Rs.15,000/- under the head of loss C.M.App.No.1527 OF 2006 & M.A.C.A No.1410 OF 2006 4 of amenities. The appellant's further grievance is that the compensation for reduction in earning capacity computed at Rs.61,200/-(1500x12x20/100x17) is also grossly inadequate. For 52% physical disability only 20% reduction in earning capacity was accepted by the Tribunal, it is lamended. 4. We have considered all the relevant inputs. We find no valid reason for the Tribunal not accepting the assertion of the petitioner that he was getting income of Rs.3,000/- per mensem. The Tribunal has accepted that claimant was involuntarily unemployed for a period of 6 months. 5. The evidence does not show that the disability at present has reduced the earning capacity of the appellant. He continues to be employed as waiter by M/s.Taj Residency, Ernakulam. There is nothing to show that the monthly income has in any way reduced. The age of retirement of employees at the Taj Residency, in the absence of any specific evidence, it can safely be assumed to be 55 years. For the period thereafter the claimant/appellant would certainly have suffered reduction in earning capacity. At present only an amount of Rs.61,200/- has C.M.App.No.1527 OF 2006 & M.A.C.A No.1410 OF 2006 5 been awarded. Learned counsel for the appellant argues that while computing the compensation for reduction in earning capacity the Tribunal should have realistically noted that to perform the work which he was doing earlier, he would be obliged to put in greater efforts with the physical disability that he has suffered. On that aspect also no amount of compensation has been awarded, it is contended. 6. Having considered all the relevant circumstances, we are of the opinion that the appellant is entitled for further amounts as compensation under the head of reduction in earning capacity. We are satisfied that a total amount of Rs.1,00,000/- can be awarded as compensation for reduction in earning capacity. This is the global amount arrived by us taking in to account the inevitable fact that post retirement the prospect of employment would be reduced. That itself would entitle the appellant to an amount of Rs.66,000/- as compensation(2500x12x20/100x11) even accepting that 52% disability entitled by the doctor would result only in reduction in earning capacity to the extent of 20% only. We do also take in to account the circumstance that there in C.M.App.No.1527 OF 2006 & M.A.C.A No.1410 OF 2006 6 view of the substantial physical disability suffered by the appellant, he will have to strain much harder to perform the work which he had earlier been performing when he had no disabilities, to earn the very same income. Future prospects in the present employment would also inevitably be affected by the disability suffered. In these circumstances we fix Rs.1,00,000/- as compensation for all dimensions of the impact on earning capacity. For the loss of amenities, considering the extent of disability and the age of the appellant, we are satisfied that a total amount of Rs.30,000/- can be awarded as compensation. 7. The above discussions lead us to the conclusion that the appellant is entitled to the following further amounts of compensation in addition to the amounts awarded by the Tribunal: 1. loss of income : Rs.9,000/-(3000x6 minus 9000) 2. Pain and suffering : Rs.5,000/-(25000 minus 20000) 3. Loss of amenities : Rs.15,000/-(30000 minus 15000) 4. Disability : Rs.38,800/- (Rs.1,00,000/- minus 61,200) ----------------- Total Rs.67,800/- ========== C.M.App.No.1527 OF 2006 & M.A.C.A No.1410 OF 2006 7 In the result; (a) This appeal is allowed in part. (b) The appellant is held entitled to a further amount of Rs.67,800/-(Rupees sixty seven thousand eight hundred only) as compensation in addition to the amounts already awarded by the Tribunal. (c) The entire amount of compensation shall carry interest at the rate directed by the Tribunal. (d) All other directions of the Tribunal are upheld. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns