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 11TH AUGUST 2011 / 20TH SRAVANA 1933 MACA.No. 658 of 2005 ---------------------- OPMV.638/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, WYNAD,KALPETTA .................... APPELLANT: APPELLANT/PETITIONER: ----------------------------------- JOSEPH PLATO PERIERAH, S/O. EARNEST PERIERAH, THANIPETTA ESTATE, PUZHAMUDI, KALPETTA, VYTHIRI TALUK, WAYANAD DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: RESPONDENTS: --------------------------- 1. SHAIJU, S/O. GOPALAN, RAMANILAYAM, PINANGODE, VENGAPPALLY, KALPETTA, WAYANAD DISTRICT (DVR OF KL-5/A 1417 JEEP), D.L. NO. NOT KNOWN. 2. P.K.GOPALAN, S/O. KUMARAN, RAMA NILAYAM, VENGAPPALLY, KALPETTA, WAYANAD DISTRICT (OWNER OF KL-5/A 1417 JEEP). 3. NATIONAL INSURANCE CO. LTD., KALPANA SHOPPING COMPLEX, MAIN ROAD, KALPETTA, WAYANAD DISTRICT. (INSURER OF KL-5/A 1417), POLICY NO.570309/98/6701540. ADV. SMT.SARAH SALVY FOR R3 SRI.T.KURIAKOSE PETER FOR R1 SRI.ABRAHAM P.GEORGE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 658 OF 2005 ============================ Dated this the 111th day of August 2011 JUDGMENT R.Basant, J. Claimant is the appellant. He claimed compensation for the loss suffered by him on account of personal injuries suffered by him in a motor accident which took place on 9/10/1999. Against a total claim of Rs.2,00,000/-, the Tribunal awarded an amount of Rs.33,000/- as per the details given below: Sl.No. Head Amount claimed 1 Loss of earning 28,980/- claim of the petition is disallowed 2 Transportation charges 1,000/- Rs. 250/- 3 Extra nourishment Bystander expenses 5,000/- Rs.2,000/- Rs.2,000/- 4 Medical expenses 25,000/- Rs.3,750/- 5 Pain & suffering 50,000/- Rs.5,000/- 6 Disability 50,000/- Rs.20,000 Total Rs.33,000/- MACA 658/2005 2 2. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company. The award is challenged only on the ground of inadequacy of quantum of compensation. The appellant was employed as a Pharmacist in Padhoor Plantations Pvt.Ltd. and was getting an income of Rs.7245/- per mensem. He had suffered multiple injuries on right leg including fracture of both bones of the right leg. He was an inpatient for seven days. He had allegedly suffered permanent disability to the tune of 12%. In support of the theory that he had suffered disability to the tune of 12%, he produced Ext.A7 disability certificate. The author of the certificate was not examined as a witness. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. First of all it is contended that the Tribunal erred in not awarding any compensation under the head of loss of earnings. The appellant must have been involuntarily unemployed for a period of two months consequent to the injuries suffered by him. Though no better evidence is produced MACA 658/2005 3 in support of the period of absence, we find it absolutely safe considering the nature of the injuries and the period of hospitalization to assume that there must have been involuntary unemployment for a period of two months. The court below has accepted the employment and salary of the appellant as assessed by him. He was earning an amount of Rs.7245/- as monthly salary. We agree with the learned counsel for the appellant that the Tribunal was not correct in assuming that the appellant could have availed leave and therefore, he would not have suffered any loss and is not entitled to any compensation for loss of earnings. His leave which he could have availed for other purposes has been lost and certainly he is entitled to be compensated for loss of earnings (for the leave) for a period of two months. 4. It is then contended that the amount of Rs.5,000/- awarded under the head of pain and suffering is painfully and grossly inadequate. Fracture of both bones of the right leg was suffered. He was an inpatient for seven days. Procedures had to be undergone. There after also, treatment had to continue. There was malunion of the fractured bones. In any view of the matter, we are satisfied that the amount of Rs.5,000/- awarded MACA 658/2005 4 was inadequate. We are of the opinion that an amount of Rs.12,000/- can safely be awarded under the head of pain and suffering. 5. The Tribunal came to the conclusion that the appellant had suffered permanent disability. A global amount of Rs.20,000/-alone has been awarded as compensation for disability. Learned counsel for the appellant submits that the Tribunal ought to have taken note of all the dimensions of the physical disability. Physical disability suffered by a person has two fold reflections on his life. It reduces the earning capacity. It also impairs the quality of life which the appellant can aspire to live thereafter. The appellant is a person aged about 39 years on the date of the accident. The disability certificate shows that there was 3/4 inches shortening of the right lower limb. There was malunion with outward bowing. It is taking into account the nature of the disability that it has been certified in Ext.A7 that the appellant had suffered 12% disability. The Tribunal has not chosen to disagree with the certificate produced. However, the Tribunal did not scientifically and appropriately calculate the MACA 658/2005 5 compensation payable. The Tribunal did of course take note of the fact that at the moment, in his present employment the appellant had not suffered any reduction in earning. but the Tribunal should certainly have taken note of the fact that after his term of employment with the present employer comes to an end, the appellant’s capacity to earn there after would be affected by the disability suffered. For 12% disability suffered after his superannuation from his present employer, he would have certainly suffered reduction in earnings. For that component, we are satisfied that compensation deserves to be awarded. For persons belonging to the age group of 56-60 years, 9 is the multiplier specified in Sarla Verma v. Delhi Transport Corporation[2009)6S.C.C.121. We are satisfied that Rs.3,000/- can safely be assumed to be the possible income after his superannuation. 6. 12% disability suffered would also impair the quality of life, the appellant can aspire to live for that component also. He is entitled for compensation for such loss also. 7. The above discussions lead us to the conclusion that the appellant is entitled to an amount of Rs.55,370/- as shown below MACA 658/2005 6 as compensation in addition to the amount already awarded to him by the Tribunal. 1) Loss of earnings (i.e.loss of love) :Rs.14,490/-(7245x2) 2)Pain and suffering :Rs. 7,000/-(12000-5000) 3)Reduction in earning Capacity :18,880/- (3000x12x9x12/100=38,880-20000) 4)Loss of amenities :Rs. 15,000/-(global) Total : Rs. 55,370/- 8. Interest has been awarded only at the rate of 6% per annum. Learned counsel for the appellant argues and we agree that the interest ought to have been awarded at the rate of 7.5% per annum at least. 9. In the result, a)this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs. 55,370/-(Rupees fifty five thousand three hundred and seventy only) in addition to the amount already awarded by the MACA 658/2005 7 Tribunal. c)We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the claim to the date of payment/realization. d)All other direction of the Tribunal are upheld. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY P.S. TO JUDGE MACA 658/2005 8