IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 MACA.No. 124 of 2008 ---------------------- OPMV.789/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/ APPELLANT/PETITIONER IN THE TRIBUNAL -------------------------------------------------- JOHNSON THOMAS, AGED 40 YEARS, S/O.THOMAS, ENDIKUZHIYIL HOUSE, VENGALLOOR P.O., THODUPUZHA BY POWER OF ATTORNEY THOMAS, ENDIKUZHIYIL HOUSE, VENGALOOR, THODUPUZHA. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENTS: RESPONDENTS IN THE TRIBUNAL ------------------------------------------ 1. GEORGE THOMAS, S/O.THOMAS, KUTTIKKATTU HOUSE, KORUTHODE P.O., KOTTAYAM (DT). 2. PURUSHOTHAMAN, S/O.NARAYANAN, PUTHENVEETIL HOUSE, THADITHODU, PERUVAMTHANAM, IDUKKI (DT). 3. THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, MUVATTUPUZHA. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 124 OF 2008 ============================ Dated this the 19th day of August 2011 JUDGMENT R.Basant, J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 23/5/2002. He was employed as a Forest Guard. His monthly income was Rs.5198/- as per the salary certificate produced. He suffered serious injuries including fracture of both bones of the right leg. He continued as an inpatient in two spells. The first was for a period of 34 days. He was on leave from 23/5/2002 to 31/12/2002 for treatment. He suffered permanent disability as a result of the accident. The Medical Board attached to the Taluk Headquarters Hospital had assessed the extent of disability to be 15%. Against the total claim of Rupees two lakhs, the Tribunal awarded an amount of Rs.79,704/- as compensation as per the details given in MACA 124/2008 2 paragraph 13 of the impugned award which we extract below: Compensation for Rupees 1)Loss of earning (1500x5) : Rs.7,500/- 2)Transportation expenses : Rs.3,980/- 3)Extra nourishment : Rs.1,500/- 4)Bye-stander expenses : Rs.2,500/- 5)Treatment expenses : Rs.15,424/- 6)Pain and suffering : Rs.20,000/- 7)disability :Rs.28,800/- (1500/-x12x16x10/100) Total :Rs.79,704/- ========= Interest was directed to be paid at the rate of 6% per annum. 2. The challenge in this appeal is directed only against the quantum of compensation. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. 3. First of all, it is contended that the compensation awarded for loss of earnings (Rs.7500/- )is totally insufficient MACA 124/2008 3 and unsatisfactory. We have clinching evidence to show that the appellant was on leave for a period of seven months immediately following the accident. We have also satisfactory materials to conclude that the monthly income was Rs.5198/-. The appellant must certainly be held to have suffered loss of earnings (or loss of leave) for the period. In either case the appellant is entitled to be adequately compensated. The Tribunal accepted only five months as the period of involuntary unemployment and reckoned only Rs.1500/- as the monthly income. This obviously is not justified. We agree with the learned counsel for the appellant. The appellant is entitled to receive an amount of Rs. 36,386/-( 5198x7)as compensation under this head. 4. The learned counsel for the appellant then contends that the Tribunal erred in not awarding any amount under the head of loss of amenities. It is his further grievance that just and reasonable compensation has not been awarded for the reduction in earning capacity. 15% is the disability certified by the Medical Board. The learned counsel contends that the Medical Board had given in detail the reasons for its conclusions. 15% is the disability reported. Three experts from various MACA 124/2008 4 disciplines were present as members of the Board. The learned counsel argues and we agree that the Tribunal erred in not accepting and acting upon the report of the Medical Board on the ground that no member of the Board was examined before court. Since the report is submitted by the Medical Board and all relevant details are given in the said disability certificate Ext.A17, we are satisfied that 15% can be reckoned as the physical disability. In the absence of better evidence that physical disability can safely be assumed to result in reduction in earning capacity to identical extent (15%). 5. The appellant was employed as a Forest Guard. There is no prospect of immediate reduction in earnings because of the disability suffered. But certainly when the appellant retires from his present employment at the age of 55 years, his earning capacity would be reduced. The Tribunal reckoned Rs.1500/- as the monthly income and accepted 16 as the multiplier. The reduction in earning capacity was worked out on that calculation. Learned counsel for the appellant submits that the quantum of monthly income taken into reckoning by the Tribunal (Rs.1500/)- is grossly inadequate. We note that 16 could not have been taken as the multiplier as there is no MACA 124/2008 5 immediate prospect of reduction in earning. But however, he can be reckoned as a person aged 55-60 years and potential of reduction in earning power can be so calculated. We are of the opinion that 2500/- can safely be accepted as the probable post retiral monthly income, 9 can be taken as the multiplier. In this view of the matter, we are satisfied that the appellant is entitled to an amount of Rs.40,500/-(2500x12x9x15/100) as compensation under the head of loss of reduction in earning capacity. 6. No amount has been awarded under the head of loss of amenities. The appellant, a person aged about 35 years has suffered 15% disability. He will have to endure the physical disability for the rest of his life. We must also take note that with the reduced physical capability, he will have to strain much harder to turn out the work which he would otherwise have been able to do. Even assuming that there is no immediate loss of earning, the court must bear in mind that extra efforts which the disabled appellant will be obliged to put in to turn out the work. Physical disability suffered by a person has two fold reflections. It reduces the earning capacity and it also reduces and impairs the quality of enjoyment of MACA 124/2008 6 life. For all these dimensions, we are satisfied that an amount of Rs.20,000/- can be awarded under the head of loss of amenities. 7. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs. 60,586/- in addition to the amount awarded by the Tribunal as per the details given below: 1 Loss of earning Rs.28,886/-(Rs.5198x7= 36386 minus 7500) 2 Compensation for prospective reduction in earning capacity Rs.11,700/- (Rs.2500x12x9x15/100 =40500 minus 28800) 3 Loss of amenities Rs.20,000/- Total Rs.60,586/- 8. The Tribunal has awarded interest only at the rate of 6% per annum. Counsel argues and we agree that interest has to be awarded at a higher rate. We direct that interest be paid at the rate of 7.5% per annum. 9. In the result a)this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs. 60586/-( Rupees sixty thousand five hundred MACA 124/2008 7 and eighty six only) in addition to the amount already awarded by the Tribunal. c) We direct that interest be paid at the rate of 7.5 % per annum from the date of the claim to the date of payment/realisation. d)All other directions of the Tribunal are upheld. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY P.S. TO JUDGE MACA 124/2008 8