IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 MACA.No. 1260 of 2005() ----------------------- OPMV.1679/1995 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER: ----------------------------------- R. GOVINDARAJ, AGED 28 YEARS, S/O. RANGASAMY THEVAR, KARTHIKEYA BHAVAN, P.O. CHALAPPURAM, KOZHIKODE. BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): RESPONDENTS 1 TO 3: ---------------------------------- 1. V.M.MANI, S/O. MUTHUSAMY, 137, BHAVANI MAIN ROAD, ASOKAPURAM, ERODE, TAMILNADU. 2. PAUL VINCENT S., S/O.SAMPATH KUMAR, ELLIS PETTAI, P.O. PALLA, PALAYAM, KANJIKOVIL, PERIYA DISTRICT, TAMILNADU. 3. THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD.,KARTHIKEYA COMPLEX FIRST FLOOR, 4036/10, METTUR MAIN ROAD, BHAVANERI-638302. NAME OF RESPONDENTS 1 AND 2 ARE REMOVED FROM THE PARTY APRAY AT THE RISK OF THE APPELLANT AS PER ORDER ON I.A. NO.2634/2009 DTD.15-9-2009. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1260 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 14th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1679/1995 on the file of the Motor Accidents Claims Tribunal, Kozhikode. In this appeal he challenges the judgment and award of the Tribunal dated June 11, 2004 awarding a compensation of ` 2,42,400/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on April 21,1995 at Thelakkara. The bus bearing registration No.KL-13/A 1564 in which the claimant was travelling collided head on with a lorry bearing registration No. TN-33/B 1600. The claimant sustained serious injuries in the accident, as a result of which, his right hand at the level of shoulder joint was amputated. He was aged 29 at the time of the accident and was a Sweet Maker and Vendor and used to earn ` 3,500/- per month. Alleging negligence against the second respondent, he filed the O.P. MACA 1260/2005 2 before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 6,00,000/-. 3. Respondents 1 and 2, the owner and driver of the offending lorry, remained absent before the Tribunal. The third respondent, the insurer of the offending lorry, filed a written statement admitting the policy. Exts.A1 to A31 were marked on the side of the claimant. Certificate of disability issued by the Medical Board was marked as Ext.C1. No evidence was adduced by the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent and awarded a compensation of ` 2,42,400/- with interest @ 9 % p.a. from the date of petition till realization and a cost of ` 1,500/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of MACA 1260/2005 3 the second respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The Tribunal awarded a total compensation of ` 2,42,400/-. Break up of the compensation awarded is as under:- Pain and suffering : ` 20,000 Hospitalization charges, : ` 8,000 bystander's expenses and medical expenses. Incidental expenses including : ` 2,000 transportation charges and expenses for extra nourishment. Further treatment : ` 2,000 Loss of earning : ` 6,000 Disability : `1,94,400 Loss of amenities and : ` 10,000 enjoyment in life. ------------------ Total : ` 2,42,400 ======= 7. The counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 8. The Tribunal took the monthly income of the claimant as ` 1,500/-, took the percentage of disability as 60%, as assessed by the Medical Board in Ext.C1, adopted multiplier of MACA 1260/2005 4 18 and awarded a compensation of ` 1,94,400/- for the disability caused. The counsel for the claimant argued that the percentage of disability caused to the claimant has to be taken as 100%, as the claimant is now unable to do any work. He cited the following decisions in support of his case:- Jayaprasad V. Rejimon Philip (2007(4) KLT 623), Raj Kumar V. Ajay Kumar (2011(1) KLT 620 (SC)), Shankarappa Kubbanna Kattiman V. Karnataka State Road Transport Corporation and others ((2005)12 SCC 266). 9. In Jayaprasad 's case (Supra) a Division Bench of this Court has held that in the case of amputation of right leg below knee of a driver disability has to be assessed at 100% taking into account his profession. In Raj Kumar's case (Supra) the Apex Court has held thus:- “10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of MACA 1260/2005 5 amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any MACA 1260/2005 6 compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.” 10. In (2005)12 SCC 266 (Supra) the Apex Court assessed the disability of a coolie, whose one arm was MACA 1260/2005 7 amputated, at 80%. In that case the Tribunal assessed the disability as 80% while High Court reduced the same to 50%. The Apex Court has set side the said finding and restored the award passed by the Tribunal. 11. In the present case the claimant was engaged in the business of making sweets and selling the same. Even after amputation of his right arm, he can engage a helper and do the work. Further he can also do some other work. Under these circumstances, in the light of the principles laid down in the above decision, we feel that percentage of disability caused to the claimant can reasonably be fixed at 70%, though Medical Board has assessed his disability as 60% in Ext.C1. 12. The Tribunal assessed the monthly income of the claimant only as ` 1,500/-. As the claimant was engaged in the business of making and selling of sweets, we feel that monthly income of the claimant can reasonably be fixed at ` 2,250/-. The multiplier adopted by the Tribunal as 18 appears to be reasonable, as he was aged 29 at the time of the accident. Thus calculated for the disability caused, the claimant is MACA 1260/2005 8 entitled to a compensation of ` 3,40,200/- (` 2,250/- x 12 x 18 x 70%). Thus the claimant is entitled to an additional compensation of ` 1,45,800/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of ` 1,45,800/- with interest @ 7.5% per annum from the date of petition till realization. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn