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 7TH JANUARY 2010 / 17TH POUSHA 1931 MACA.No. 689 of 2003(C) ---------------------- OPMV.504/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: ----------------------------------- SCARIA, S/O. MANI, MAVELIKUNNEL, ELIKKULAM P.O., KOTTAYAM DISTRICT. BY ADV. SRI.V.K.SUNIL RESPONDENTS : RESPONDENTS --------------- 1. MARIAMMA ABRAHAM, KOONTHAMATTATHIL HOUSE, MONIPPALY P.O., KOTTAYAM. 2. JOY JOSEPH, S/O. JOSEPH, VALVANATTU HOUSE, AMANAKKARA P.O., UZHAVOOR, KOTTAYAM. 3. THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA. 4. JOSE MATHEW, KUTTIKANDATHIL THADATHIL HOUSE, THEODICAL P.O., PATHANAMTHITTA. (REMOVED) 5. K.T. ABHAYAKHOSH, S/O. THANKAPPAN, KUNIYAMPAKAYIL HOUSE, KUNJIKKUZHI P.O., IDUKKI. 6. THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, KANJIKKUZHY, KOTTAYAM. ADV. SRI.M.JACOB MURICKAN FOR R3 & R6 (4th Respondent is removed from the party array at the risk of the petitioner as per order dt.30.11.2009 in I.A.No.3564/2009) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.A.C.A.No. 689 of 2003 ------------------------------------------------- Dated this the 7th day of January, 2010 JUDGMENT Basant,J. The claimant is the appellant. He suffered injuries in a motor accident. He claimed an amount of Rs.1,52,000/- as compensation. The Tribunal by the impugned award directed payment of Rs.41,135/- along with interest at the rate of 9% per annum as per the details shown below: Transport to hospital - Rs. 1,000.00 Extra-nourishment - Rs. 250.00 Damage to clothes - Rs. 250.00 Bystander's expenses - Rs. 450.00 Medical expenses - Rs.16,185.00 Loss of earnings (3000 x 1000) - Rs. 3,000.00 M.A.C.A.No. 689 of 2003 -: 2 :- Pain and suffering - Rs.10,000.00 Loss of earning capacity (1000 x 12 x 15 x 5) plus 1000 - Rs.10,000.00 100 ------------------- Total - Rs.41,135.00 ======== 2. The claimant had suffered injuries including an injury to the vertebral column. Initially, he was hospitalised for a period of one day and later 14 days. M.R.I. of cervical spine was taken. Right lateral C5 - C6 disc compressing the right C6 never root was the impression. He allegedly suffered disability to the tune of 25% as certified in Ext.A17. The Tribunal did not accept the percentage of disability indicated in Ext.A17 and came to the conclusion that only 5% can safely be reckoned as the extent of physical disability. 3. The learned counsel for the appellant contends that just and reasonable compensation has not been paid. The appellant was an inpatient in two spells in allopathic hospitals for a period of 15 days. Subsequently, he had allegedly continued ayurvedic treatment as an inpatient for 14 days. He was an agriculturist and the monthly income reckoned at Rs.1,000/- is hopelessly and perversely inadequate. The accident had taken place in 1995 and the II Schedule to the Motor Vehicles Act which come into force in 1994 indicates that presumption of prudence can be M.A.C.A.No. 689 of 2003 -: 3 :- drawn that even an unemployed person must have been earning an income of Rs.15,000/- per annum. The learned counsel, in these circumstances, contends that the quantum of compensation deserves to be enhanced. 4. We have heard both counsel. We find merit in the challenge raised against the impugned award. In particular, we note that the amount of Rs.250/- awarded under the heard of extra-nourishment as against the claim of Rs.1,300/- is inadequate and unjust. The bystander's expenses awarded at Rs.450/- is also inadequate in the light of the evidence that he was at least 29 days hospitalisation. Loss of earnings computed at Rs.3,000/- for three months is also inadequate, we are satisfied. Considering the nature of employment of the claimant/appellant and the nature of injuries suffered by him, we are satisfied that 7.5% could safely have been reckoned as the extent of physical disability for the purpose of assessment of loss of earning capacity. We further note, taking into account the nature of permanent disability, that the disability must have left behind reflections on the quality of enjoyment of life. 5. We are, in these circumstances, satisfied that a further amount of Rs.33,100/- as per the details shown below can be awarded as compensation in addition to the amounts already M.A.C.A.No. 689 of 2003 -: 4 :- awarded: Extra-nourishment (Rs.1300 minus Rs.250) - Rs. 1,050.00 Bystander's expenses (Rs.3,000 minus Rs.450) - Rs. 2,550.00 Loss of earnings (4 months x 2000 minus 3000) - Rs. 5,000.00 Loss of earning capacity (2000 x 12 x 15 x 7.5) i.e., 100 Rs.27000 minus 10000 - Rs.17,000.00 Loss of amenities - Rs. 7,500.00 ------------------- Total - Rs.33,100.00 ======== 6. In the result: (a) This appeal is allowed in part. (b) The impugned award is modified. In addition to the amounts awarded by the Tribunal, the 3rd respondent shall pay a further amount of Rs.33,100/- to the claimant. Interest shall be payable on such additional amount also at the rate directed by the Tribunal from the date of the petition. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI Nan/ (Judge) //true copy// P.S. to Judge