IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 MFA.No. 763 of 2001(D) --------------------------------- O.P(MV).NO.370/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT/ 3RD RESPONDENT: ------------------------------------------------ THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON. RESPONDENTS/ CLAIMANTS & RESPONDENTS 1 & 2: ----------------------------------------------------------------------------- 1. BIJI SAMUEL, S/O. V.T. SAMUELKUTTY, OVIL HOUSE, ANGADIKKAL NORTH P.O., ANGADIKKAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA. 2. PURUSHOTHAMAN, S/O. PACHU, PONGALADY KOLAYIL VEEDU, PARAKKARA.P.O., THATTAYIL, ADOOR TALUK, PATHANAMTHITTA. 3. SIRAJUDDIN, THEKKOTTU CHARINJATHIL VEEDU, KURUMPALA, PANDALAM, PATHANAMTHITTA DISTRICT. BY ADV. SRI. M.A. GEORGE - R1, ADV. SR1.P.V.CHANDRA MOHAN - R2. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2008,ALONG WITH M.F.A NO. 973/2002,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 6360/2001 IN M.F.A. NO. 763/2001-E DISMISSED SD/- J.B.KOSHY, JUDGE, 11/02/2008. SD/- K. HEMA, JUDGE. //TRUE COPY// prv. J.B. Koshy & K.Hema, JJ. -------------------------------------- M.F.A. Nos. 763 of 2001 and 973 of 2002 --------------------------------------- Dated this the 11th day of February, 2008 Judgment Koshy,J. Insurance company filed M.F.A.No.763 of 2001 contending that the accident occurred due to the sole negligence of the claimant and also contending that the amount awarded was exorbitantly high. M.F.A.No.973 of 2002 was filed by the claimant contending that the amount awarded was insufficient and inadequate considering the after effects of the injuries. With regard to the negligence, police found that the driver of the autorickshaw was responsible for the accident and he was charge-sheeted by Ext.A1 charge sheet. Ext.A2 scene mahazar shows that the autorickshaw insured by the appellant insurance company was in the wrong side whereas the motor cycle was in its correct side. The claimant was travelling with his wife in the pillion. Considering the totality of injuries, we see no ground to differ from the tribunal that the accident occurred due to the sole negligence of the driver of the M.F.A.Nos. 763/2001 & 973/2002 2 autorickshaw and compensation cannot be denied on the ground of contributory negligence on the part of the claimant. 2. Main dispute is regarding the compensation awarded. The tribunal awarded compensation as follows: 1. Loss of actual earning : Rs.75,000/- 2. Transportation to hospital : Rs.20,000/- 3. Extra nourishment : Rs. 8,000/- 4. Medical and bystanders' expenses : Rs.60,000/- Total amount awarded was Rs.1,63,000/-. For pain and suffering Rs.75,000/- was granted and Rs.1,50,000/- was awarded towards loss of earning power. An amount of Rs.2,25,000/- was awarded towards loss of amenities and for permanent disability and Rs.12,000/- was awarded towards future treatment. The tribunal calculated the amount on the assumption that his monthly income was Rs.25,000/-. He was an income tax assessee. Exts.A6 and A6 (a) are the income tax receipts. It shows that during the assessment year 1996-97 (accounting year in which the accident occurred) his net income from the profession was Rs.43,578/-. It is true that what is shown was the net income. He was having an office in a rented premises and he had employees. Even after the accident, he has to pay rent and salary to his employees with a lesser income. During the period of treatment and hospitalisation, M.F.A.Nos. 763/2001 & 973/2002 3 he was unable to earn any income. Therefore, his income has to be calculated considering the expenses with other professional expenses. His net income for the assessment year 1997-98 is Rs.48,783/- and the difference in income was about Rs.7,500/- in the next year. There is no evidence showing the difference in income in the future years. It is true that an accident cannot be taken as a bonanza, but, at the same time, the injured has to be compensated. His power of earning agricultural income was subsequently reduced in the subsequent year from Rs.2,80,000/= to Rs.53,490/=. It is not explained what is the reason for reducing the agricultural income. Tribunal has also not granted compensation on a multiplier method. Tribunal has granted Rs.1,50,000/= for loss of earning power, but, for disability and loss of amenities Rs.2,25,000/- was granted. Loss of earning power is the main reason for granting compensation for disability apart from compensation for pain and suffering and compensation can be granted for loss of earning power and disability together. Considering the annual income etc. we are not disturbing the award Rs.1,50,000/- for loss of earning power, but, he cannot be granted compensation for disability again. However, we award Rs.25,000/- for loss of amenities against the award of Rs.2,25,000/- for permanent disability and loss of amenities together. Hence, Rs.2,00,000/- has to be deducted. As far as his M.F.A.Nos. 763/2001 & 973/2002 4 disability is concerned, it is true that doctor has assessed 19%. As per the wound certificate, he sustained comminuted fracture tibia and fibula (Rt.). He was admitted in hospital on 9.10.1996 and he was in the hospital for nearly three months. He was discharged only on 29.12.1996. He was immobilised in POP and the plate and screw were removed in April, 1997. After removal of plate and screw also, he was immobilised for three months and he was walking with the aid of crutches. X-ray showed healing and he started partial weight bearing and after short period, it can be united. We are of the view that 19% disability assessed by the doctor is on the high side. Considering his income, Rs.1,50,000/- was granted towards loss of earning power and consequently amount granted for loss of earning power is not disturbed considering the income-tax returns etc. In view of the long period of treatment and considering the fact that he was in plaster cast for six months the amount of Rs.75,000/- granted towards treatment expenses is also not disturbed. He had to be carried to the hospital several times. Hence, compensation granted for medical expenses or transportation charges needs no interference. Considering the fact that he was under treatment for a long period and was in plaster cast for three months and had to be admitted in the hospital again for removing the plate and screw, compensation awarded under the head pain and suffering also M.F.A.Nos. 763/2001 & 973/2002 5 needs no interference. In the result, we are of the view that maximum compensation that can be granted is only Rs.4,25,000/- instead of Rs.6,25,000/-. Interest awarded was 12% per annum from the date of application till deposit. Award was passed in 2000. Considering the rate of interest prevalent in 2000 and today, we reduce the rate of interest to 9%. The above amount of compensation of Rs.4,25,000/- is payable with 9% interest from the date of application till its deposit. The insurance company shall deposit the above amount of Rs.4,25,000/- with interest at the rate of 9% per annum from the date of application till its deposit and cost as awarded by the tribunal after deducting the amount already paid, if any. Appeal filed by the insurance company is allowed in part and appeal filed by the claimant is dismissed. Parties to bear their costs. J.B.Koshy Judge K. Hema Judge vaa M.F.A.Nos. 763/2001 & 973/2002 6 J.B. KOSHY AND K.HEMA ,JJ. ----------------------------------------- M.F.A. No. 763 of 2001 and 973 of 2002 ----------------------------------------- Judgment Dated:11th February, 2008