IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 MACA.No. 489 of 2005(B) ---------------------- OPMV.765/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT/CLAIMANT --------------------------------- ABDUL SIRAJ, S/O. MOIDEEN BAVA, SHAJITHA MANZIL, AMBALKKADAVU, KULATHUPUZHA P.O. BY ADV. SRI.T.KURIAKOSE PETER SRI.ABRAHAM P.GEORGE RESPONDENTS : RESPONDENTS 1 AND 2 IN THE O.P --------------- 1. ABDUL SABU, SHAJITHA MANZIL, AMBALAKKADAVU, KULATHUPUZHA P.O. 2. THE DISTRICT INSURANCE OFFICER, KERALA STATE INSURANCE DEPARTMENT, KOLLAM. GOVERNMENT PLEADER SMT.R.BINDU FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.489 of 2005-B ***************************** Dated this the 23rd day of August, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in an accident which took place on 15.12.1999. Against a total claim of Rs.4 lakhs, the Tribunal awarded only a total amount of Rs.95,872/- as per the details given below: Sl.No. Heads of compensation Amount awarded 1 Loss of earning (one month) Rs. 2,500.00 2 Transport to hospital Rs. 2,230.00 3 Extra nourishment Rs. 750.00 4 Bystander's expenses Rs. 1,000.00 5 Medical expenses Rs.18,292.00 6 Compensation for pain and suffering Rs. 7,500.00 7 Compensation for continuing permanent disability Rs.15,000 (6 X 2,500) 8 Compensation for reduction in earning capacity Rs.48,600.00 (2,500 X 12 X 18 X 9/100) Total Rs.95,872.00 2. We have heard the learned counsel for the appellant M.A.C.A No.489 of 2005-B 2 and the learned counsel for respondents. The learned counsel for the appellant assails the impugned award on various grounds. The challenge is limited to the alleged inadequacy of the quantum of compensation awarded. 3. The learned counsel for the appellant first of all contends that the Tribunal had grossly erred in reckoning the monthly income as Rs.2,500/- only. The appellant was employed abroad. He was getting a monthly salary of 2,500 Saudi Riyal. This is equivalent to a monthly income of Rs.27,325/-. The Tribunal grossly ignored realities and had taken into account only an amount of Rs.2,500/- as the monthly income. This is grossly incorrect, contends the learned counsel. 4. The learned counsel further submits that the appellant was an inpatient for a period of 24 days from 15.12.1999 to 19.10.2000. The Tribunal erred in awarding only an amount of Rs.2,500/- towards the loss of earnings. We do note that under two different heads, a total amount of Rs.17,500/- has been awarded as loss of income (7 X 2,500). In any view of the matter, we are satisfied that for loss of earnings a higher amount must have been awarded as compensation. 5. Though the appellant was an inpatient for 24 days, M.A.C.A No.489 of 2005-B 3 only a total amount of Rs.1,750/- (1000 + 750) has been awarded as compensation for expenses of bystander and extra nourishment. The learned counsel prays and we agree that a higher amount of compensation is to be granted under this head. 6. The learned counsel then contends that the compensation awarded under the head of pain and suffering is grossly inadequate. Only an amount of Rs.7,500/- has been awarded. The appellant had suffered a major fracture – fracture left femur shaft. He was an inpatient for a period of 24 days. He had to undergo two surgeries. The amount of Rs.7,500/- awarded under the head of compensation for pain and suffering does not realistically take into account the amount of pain and suffering endured by the appellant/claimant. We find merit in that contention. 7. The Tribunal had accepted that 9% is the disability. A certificate issued by a medical officer of the Co-operative Medical College, Kochi was produced suggesting that permanent disability can be assessed at 17%. The Tribunal accepted only 9% as the extent of disability. The relevant certificate Ext.A12 shows that when the medical officer examined the appellant on 11.10.2002, the following were the disabilities. M.A.C.A No.489 of 2005-B 4 “1. Adherent scar left thigh which is painful. 2. Loss of sensations on lateral part of upper 3rd of thigh, the distribution of lateral cutaneous nerve of thigh. 3. Moderate wasting left lower limb muscles. 4. Limitation of 20 flexion of left knee. 5. Radiological evidence of implants left insitu.” 8. The maker of Ext.A12 was not examined. The Tribunal was not satisfied that the permanent disability can be reckoned as 17% as alleged. The Tribunal hence reckoned only 9% as the consequent reduction in earning capacity. Except the injured PW1, no other person was examined to prove disability suffered or the disability certificate Ext.A12. We are, in these circumstances, satisfied that the Tribunal cannot be found fault with for not accepting any higher extent of reduction in earning capacity. 9. The Tribunal has adopted 18 as the multiplier. The appellant was a person, aged 29 years. Going by the dictum in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], only 17 can be reckoned as the multiplier. Certainly a higher amount of monthly income is liable to be taken into M.A.C.A No.489 of 2005-B 5 account while ascertaining the quantum of compensation for reduction in earning capacity. The fact that the appellant had gone back to Saudi Arabia and had continued working there, is no reason not to award any amount as compensation for loss of earning power (reduction in earning capacity). 10. The learned counsel for the appellant further contends that the appellant, a young man aged 29 years, had suffered loss of amenities as a result of the accident. Physical disability suffered has two fold reflections on a person's life. It reduces the earning capacity. It also impairs the quality of enjoyment of life. For the latter dimension of loss suffered also, compensation is liable to be granted. But the Tribunal has not awarded any amount of compensation. We find merit in that contention also. 11. Taking all the relevant circumstances into account, we are satisfied that the appellant is entitled to the following further amounts as compensation in addition to the amount already awarded by the Tribunal. M.A.C.A No.489 of 2005-B 6 Heads of compensation Amount Loss of earnings Rs.12,500.00 [(Rs.5000X3 months = Rs.15,000) minus Rs.2,500] Extra nourishment and bystander's expenses Rs. 3,050.00 [(Rs.200X24=4,800) minus Rs.1,750] Pain and suffering Rs. 7,500.00 (15,000 minus 7,500) Compensation for reduction in earning capacity Rs.28,200.00 [(5000X12X17X9/100 = 91,800) minus 63,600] Loss of amenities Rs.25,000.00 Total Rs.76,250.00 12. The Tribunal has awarded interest only @ 6% per annum. The learned counsel for the appellant prays and we agree that interest must have been awarded at a higher rate. We are satisfied that interest can be awarded at 7.5% per annum. 13. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.76,250/- (Rupees Seventy six thousand two hundred and fifty only) in addition to the amount already awarded by the Tribunal; c) We direct that interest be paid on the entire amount M.A.C.A No.489 of 2005-B 7 of compensation from the date of the petition to the date of realisation @ 7.5% per annum; d) All other directions of the Tribunal are upheld. 14. Needless to say, amounts if any already paid shall be given due credit towards the amount payable as per clause (b) in para.13 above. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/