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 25TH AUGUST 2011 / 3RD BHADRA 1933 MACA.No. 610 of 2010(F) ---------------------- OPMV.1024/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT : PETITIONER ------------------------ SEBASTIAN GEORGE @ KUNJAPPAN, S/O.GEORGE, KORATHARA, VATTAYAL WARD,ALAPPUZHA. BY ADV. SRI.R.AZAD BABU RESPONDENTS : RESPONDENTS --------------- 1. SAM THOMAS @ SAMKUTTY,S/O.KUNJUKUNJU THOMAS,MUNDAKKATHAYIL VEETTIL,SWAMY PALAM BHAGOM, KRACKAL MURI,PERINGALA VILLAGE,KARACKAL PO, THIRUVALLA. 2. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE NO.1,MATTETHARA BUILDING, 3RD FLOOR, BAKER JN.KOTTAYAM. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.610 of 2010-F ***************************** Dated this the 25th day of August, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 20.03.2004. He had suffered injuries including multiple fractures. There was fracture of the clavicle. There was also compound comminuted fracture of left femur proximal 3rd. He was treated as an inpatient for a period of 60 days. He suffered permanent disability. PW2 doctor examined him and issued Ext.A8 disability certificate to suggest that he has suffered permanent physical disability to the extent of 35%. 25% was stated to be the disability of the left lower limb. 10% disability was attributed to the malunion of the fractured clavicle. 2. The Tribunal by the impugned award, came to the conclusion that the appellant is entitled only for an amount of Rs.2,77,000/-. The details are given in para.8. We extract those details below: M.A.C.A No.610 of 2010-F 2 Sl.No. Heads of award Amount awarded 1 Compensation for loss of earning Rs. 30,000.00 (5000X6) 2 Cost of medicine and treatment charges Rs. 85,000.00 3 Transportation charges Rs. 3,000.00 4 Bystander's expenses Rs. 3,000.00 5 Extra nourishment Rs. 1,000.00 6 Damage to clothing Rs. 500.00 7 Compensation for pain and suffering Rs. 20,000.00 8 Compensation for permanent disability and loss of earning power Rs.1,32,000.00 (5000X12X11X 20/100) 9 Compensation for loss of amenities Rs. 2,500.00 Total Rs.2,77,000/- 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only on the ground that the quantum of compensation is inadequate. 4. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the quantum of monthly income reckoned by the Tribunal (Rs.5,000/-) is painfully low. The appellant was a 52 year old person employed in the Gulf for a fairly long period of time. He was employed as a salesman/sales representative in a ready made shop. He had produced Ext.A18 certificate issued by his employer to suggest that the rupee equivalent to his monthly salary was Rs.20,900/-. 5. The Tribunal reckoned his monthly income only as M.A.C.A No.610 of 2010-F 3 Rs.5,000/-. The reduction in earning capacity was reckoned at 20%. 11 was adopted as the multiplier for the purpose of ascertainment of the total loss. According to the learned counsel for the appellant, adoption of 5000 as the monthly income is grossly inadequate. The Tribunal cannot be found fault with for not swallowing Ext.A18 salary certificate issued by the employer abroad as the gospel truth. The learned counsel for the insurance company points out that expenses for the incumbent to work abroad must also be realistically taken into consideration while ascertaining the monetary equivalent of the monthly earning. The learned counsel for the insurance company further points out that the appellant was aged 52 years admittedly and it is very unlikely that he would have continued for 11 years at his place of employment abroad. All these circumstances must have been, and have actually been taken note of by the Tribunal realistically in ascertaining the monthly income of the appellant. In these circumstances, the learned counsel for the insurance company submits that the monthly income does not deserve modification/enhancement at the hands of this Court. 6. The learned counsel for the appellant on the contrary points out that following clause 6 of the Second Schedule and M.A.C.A No.610 of 2010-F 4 the dicta of the Supreme Court in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. Mohammad Tabbar & Anr. [2008 ACJ 1488], even if the appellant were just an able bodied person, Rs.3,000/- would have been reckoned as the monthly income. All circumstances may be taken into consideration and an appropriate amount may be fixed as the monthly income, contends the learned counsel. 7. We take note of all the relevant circumstances. We are of the opinion that Rs.6,000/- per mensem can safely be reckoned as the monthly income both for ascertainment of loss of earning (actual) and the loss of earning power for the future. 8. The learned counsel for the appellant next contends that in any view of the matter, the award of only an amount of Rs.2,500/- under the head of loss of amenities is unrealistic. The appellant was a person, aged 52 years. He has suffered permanent disability certified to be 35% by PW2 and accepted by the Tribunal as 20%. Physical disability suffered by a person necessarily has two fold reflections on his life. It reduces his earning capacity. It also impairs the quality of enjoyment of life. For all dimensions of the loss of amenities, including inconvenience, discomfiture, difficulties to pursue the ordinary M.A.C.A No.610 of 2010-F 5 pursuits of life and reduction in life expectancy, an appropriate amount of compensation deserves to be granted, argues the learned counsel. We agree. The amount of Rs.2,500/- does not appear to us to be reasonable and sufficient in these circumstances. We are satisfied that an amount of Rs.20,000/- can be awarded as compensation under the head of loss of amenities. 9. Even though there is a contention that the physical disability admittedly suffered by the appellant must have been reckoned to result in reduction in earning capacity to a higher percentage than 20% as reckoned by the Tribunal, we are unable to agree that such course can be safely followed. We have been taken through the contents of Ext.A8 disability certificate as also the materials available regarding decreased ability of the appellant to perform work. We are, in these circumstances, satisfied that 20% reckoned by the Tribunal as reduction in earning capacity is fair and reasonable. There was shortening of 5 c.m of the left femur, we do note from Ext.A8. 10. The learned counsel for the appellant then submits that though the appellant has been an inpatient for a period of 60 days. Only an amount of Rs.4,000/- (3000 plus 1000) has M.A.C.A No.610 of 2010-F 6 been awarded by the Tribunal under the heads of bystander's expenses and extra nourishment. We are satisfied that Rs.200/- per day can safely be reckoned as the total amount of compensation payable under those heads. 11. We are not persuaded to agree that under any other heads the impugned award deserves modification. 12. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.57,900/- as shown below in addition to the amount already awarded by the Tribunal. i) Compensation for loss of earnings : Rs. 6,000.00 [(Rs.6000 X 6 = 36,000) minus 30,000] ii) Bystander's expenses and extra nourishment : Rs. 8,000.00 [(60XRs.200=12,000) minus Rs.4000] iii) Compensation for loss of earning power : Rs.26,400.00 [(6000 X 12 X 11 X 20/100 = 1,58,400) minus 1,32,000] iv) Compensation for loss of amenities : Rs.17,500.00 (20000 minus 2,500) ------------------- Total Rs.57,900.00 ======== M.A.C.A No.610 of 2010-F 7 13. In the result: i) This appeal is allowed in part; ii) The appellant is found entitled to a further amount of Rs.57,900/- (Rupees Fifty seven thousand and nine hundred only) as compensation in addition to the amount already awarded by the Tribunal; iii) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as specified by the Tribunal in the impugned award; iv) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/