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 20TH OCTOBER 2011 / 28TH ASWINA 1933 MACA.No. 1338 of 2011(B) ----------------------- OPMV.427/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT/PETTIIONER. ----------------------------------- GEORGE CHERIAN, KOCHUPARAMPIL HOUSE, PAIVALLY BHAGOM MURI, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SMT.ANITHA M.N. (EKM) RESPONDENTS: --------------- 1. CHERIAN.C.M., S/O.THOMAS MATHEW, CHARUVUKUNNIL, VARIYAPURAM KIZHAKKUM, ELANTHOOR VILLAGE, PATHANAMTHITTA-689 503. 2. ROY M GEROGE,S/O.P.O.GOERGE, PARACKAMANNIL AKKARA HOUSE, EDAPARIYARAM, PARIYARAM MURI, ELANTHOOR VILLAGE- 689 5001. 3. THE BRANCHMANAGER, NEW INDIA ASSURANCE CO. LTD, PATHANAMTHITTA-689 503. SRI.ZIYAD REHIMAN, STANDING COUNSEL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1338 of 2011 ***************************** Dated this the 20th day of October, 2011 JUDGMENT BASANT, J. Claimant is the appellant. Claimant, a business man, aged 42 years, claimed compensation for personal injuries suffered by him in a motor accident which took place on 15.04.2002. He had suffered compound communited fracture of both bones of the right leg below knee. There are other injuries also. The appellant underwent treatment as an inpatient for 30 days in different spells. He was involuntarily unemployed for some period of time after the accident. According to the appellant, he was unable to appear for work for a total period of 11 months and during this period, he had to engage a manager to manage the affairs in his absence. He claimed compensation for the salary paid to such manager. The appellant had suffered permanent disability as a result of the accident. Ext.A6 disability certificate issued by the District Medical Board shows that he had suffered physical disability to the extent of 5%. 2. The Tribunal against a total claim of Rs.10 lakhs, awarded a total amount of Rs.1,39,775/- as compensation as per the details given in para.11 of the impugned award, which we M.A.C.A No.1338 of 2011 2 extract below: Sl.No . Head of claim Amount awarded 1 Transportation expenses Rs. 10,000.00 2 Salary for manager Rs. 30,000.00 3 Medical expenses Rs. 41,775.00 4 Bystander's expenses Rs. 3,000.00 5 Pain and suffering Rs. 15,000.00 6 Compensation for permanent disability & loss of earning power Rs. 30,000.00 7 Loss of amenities Rs. 10,000.00 Total Rs.1,39,775.00 3. 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 to satisfy the award. The award is challenged by the appellant on the sole ground that the quantum of compensation awarded is inadequate. 4. Called upon to explain, the learned counsel for the appellant first of all contends that no compensation has been awarded under the head of loss of earnings. The appellant is not a person employed in the ordinary sense of the term. He M.A.C.A No.1338 of 2011 3 manages his own business. According to him, the accident and the injury had rendered it impossible for him to attend to work in connection with his business for a long period of time. During such period, according to him, he engaged a manager. He claimed amounts paid towards the salary of such manager. The Tribunal awarded an amount of Rs.30,000/- as salary of the manager. This was awarded @ Rs.5,000/- per mensem for 6 months. The learned counsel for the appellant contends that the period of inability to pursue activities had stretched for a period of 11 months. On the basis of the materials presently available, we are satisfied that the Tribunal committed no error in assuming that such inability to pursue the management of the business could only have been for a period of 6 months and that an amount of Rs.30,000/- is payable as compensation under that head. We are not persuaded to interfere with the direction issued by the Tribunal in the impugned award on these aspects. 5. For pain and suffering, only an amount of Rs.15,000/- has been awarded as compensation. Considering the nature of procedures undergone, we are satisfied that the appellant is entitled for an amount of Rs.25,000/- in all as compensation under the head of pain and suffering. M.A.C.A No.1338 of 2011 4 6. No compensation was claimed under the head of loss of amenities. The Tribunal awarded a total amount of Rs.40,000/- (30,000 plus 10,000) as compensation for reduction in earning capacity and loss of amenities. The learned counsel for the appellant argues that the amount awarded under this head is not sufficient. 5% disability has been suffered and that has been accepted by the Tribunal. Considering the nature of employment of the appellant – managing his own business, this reduction in physical ability by 5% is unlikely to have any impact on his earning capacity. However, we find merit in the submission of the counsel that such disability would oblige the appellant to strain harder for the performance of his normal activities in connection with his business. A global amount of Rs.40,000/- has been awarded. Multiplier-multiplicand method has not been specifically employed. We are satisfied that notionally an amount of Rs.10,000/- can be accepted as the monthly income and adopting 15 as the multiplier considering the age of the appellant, the total compensation for disability can be ascertained by employing the multiplier-multiplicand method. 7. No compensation under the head of extra nourishment is seen awarded. We have evidence to show that he M.A.C.A No.1338 of 2011 5 was an inpatient for 30 days and had continued treatment for a period of 6 months, as accepted by the Tribunal. We are satisfied, in these circumstances, that an amount of Rs.5,000/- can be awarded as compensation under the head of extra nourishment. 8. We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.65,000/- as compensation as shown below in addition to the amount already awarded by the Tribunal under the impugned award. i) Pain and suffering : Rs. 10,000.00 (25,000 minus 15,000) ii) Extra nourishment : Rs. 5,000.00 (no amount awarded by the Tribunal) iii) Compensation for disability : Rs.50,000.00 (impact on earning (10000X12X15X5/100 = capacity as also loss 90,000 minus 40,000) of amenities) ------------------- Total : Rs.65,000.00 ======== M.A.C.A No.1338 of 2011 6 11. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.65,000/- (Rupees Sixty five thousand only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/