IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MACA.No. 1702 of 2011 ------------------------------- OPMV. 248/2008 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT / PETITIONER :- ------------------------------------------ SANDEEP, S/O. THILAKAN, EZHAVAPADY HOUSE, ILLIKKAD DESOM, KATTOOR P.O. & VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.BINOY RAM RESPONDENTS / RESPONDENTS : - --------------------------------------------------- 1. ABDULLAKUTTY, S/O.KADER, KARAPPAMVEETIL HOUSE, CHENDRAPPINNY, EDATHIRITHY VILLAGE, THRISSUR DISTRICT - 680 687. 2. RAJAN, S/O. RAMAN, PUTHUVEETIL HOUSE, KATOOR DESOM & VILLAGE, THRISSUR DISTRICT - 680 702. 3. THE MANAGER, NATIONAL INSURANCE CO.LTD., IRINJALAKUDA - 680 121. ADVS. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 SRI. M.A GEORGE, S.C THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- R.BASANT & K.SURENDRA MOHAN, JJ --------------------------------------------- MACA No.1702 of 2011 --------------------------------------------- Dated this the 2nd day of November 2011 ORDER/JUDGMENT CMA No.2563 of 2011 Heard. This petition is to condone the delay of 54 days in filing the appeal. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company which has been made entirely liable under the impugned award. We take a lenient view. Petition allowed. Delay condoned. MACA No.1702 of 2011 Claimant is the appellant. He, a 24 year old Driver, claimed compensation for personal injury suffered by him in a motor accident which took place on 2.3.2008. He had suffered multiple injuries including fracture of the frontal bone. He had loss of consciousness. There was bleeding from the right frontal scalp wound. There was depressed compound fracture of the right frontal bone. C.T.Scan confirmed depressed frontal bone fracture. On 2.3.2008, he MACA No.1702 of 2011 2 underwent surgical elevation of the depressed fracture. The doctor issued Ext.A6 certificate in which it is opined that because of the aforesaid injuries, he is assessed to have permanent partial deformity and 5% permanent disability. The Tribunal did not accept the said certificate. It did not conclude that any permanent disability had resulted. Against a claim of Rs.1,01,500/- as compensation, the Tribunal awarded an amount of Rs.49,637/- as per the details given in paragraph-7 of the impugned award which we extract below: Sl.No. Head of claim Amount claimed Amount Basis vital details in a nut shell 1 Loss of earnings (Total) 13,500/- 6,000/- 2000X3 months 2 Medical and miscellaneous 35,000/- 21,637/- Rs.21,367/- (acceptable bills for Rs.21,367/- produced) 3 By-standers expenses 6,000/- 500/- Rs.100x5 days 1 person 4 Transportation exp. 2,000/- 500/- 5 Pain and suffering 25,000/- 18,000/- 6 Loss of disabilities -- --- 7 Loss of consortium -- --- 8 Loss of love and affection --- --- 9 Loss of estate --- --- MACA No.1702 of 2011 3 Sl.No. Head of claim Amount claimed Amount Basis vital details in a nut shell 10 Loss of amenities and conveniences etc. 20,000/- 3,000/- Total 1,01,500/- 49,637/- Rs.49,637/- along with interest @ 7% p.a. From 28.3.2008 till realisation 2. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company who has been made entirely liable under the impugned award. Challenge is raised only on the ground that the quantum of compensation awarded is not adequate. 3. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the monthly income of the appellant reckoned by the Tribunal is grossly inadequate. The Tribunal assumed that Rs.2,000/- was his monthly income. This is totally unreasonable. The accident had taken place in 2008. Taking into account clause-6 of the second schedule as also the precedents in Lakshmi Devi V Mohammed Tabbar (2008 ACJ 1488) and Latha Wathwa v State of Bihar (AIR 2001 SC 3218), the Tribunal should MACA No.1702 of 2011 4 certainly have reckoned a much higher amount as the monthly income. Reliance is placed on Ext.A8 to show that the appellant was having a valid driving license with badge to drive light motor vehicles and three wheelers. We are satisfied that Rs.3500/- can be reckoned as the monthly income. 4. Though the counsel for the appellant submits that compensation should have been awarded accepting that the appellant had suffered permanent partial physical disability, we are unable to come to any safe conclusion on the basis of Ext.A6 that the appellant had actually suffered any permanent disability or consequent reduction in earning capacity. Ext.A6 was not formally proved. The details available in Ext.A6 does, of course, persuade us to hold that loss of amenities and inconveniences must have resulted in the course of treatment and during the period of enforced unemployment. The learned counsel for the Insurance Company alertly points out that the appellant who claims an amount of Rs.1,01,500/- had not chosen to stake any specific claim under the head of disability or consequent reduction in earning capacity. We are in these circumstances satisfied that the Tribunal did not commit any error in not swallowing Ext.A6 certificate produced before court without MACA No.1702 of 2011 5 proper proof. The compensation under the head of loss of amenities can be enhanced to Rs.7,500/-, we hold. 5. The counsel for the appellant argues that no compensation has been awarded under the head of extra nourishment. We are satisfied that an amount of Rs.1,000/- can be awarded under that head. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.10,000/- (Rupees Ten Thousand only) as per the details given below as compensation in addition to the amount awarded by the Tribunal. Sl.No. Head of claim Amount 1 Loss of earnings Rs.4500/- (Rs.3,500/- x3=Rs.10,500 minus 6000) 2 Extra nourishment Rs.1,000/-(no amount is awarded by the Tribunal) 3 Loss of amenities Rs.4500/-(Rs.7500 minus 3000) Total Rs.10,000/- 7. We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. 8. In the result, MACA No.1702 of 2011 6 a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.10,000/- (Rupees Ten Thousand only) in addition to the amount awarded by the Tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period specified by the Tribunal in the impugned award. d) We direct that the proportionate cost shall be worked out on the entire amount of compensation hereby awarded, as indicated in Jeena v Satheesh Babu (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. SD/- R.BASANT, JUDGE SD/- K.SURENDRA MOHAN, JUDGE TRUE COPY p.s.to judge css/