IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MACA.No. 1560 of 2011() ----------------------- OPMV.13/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/ APPELLANT/6TH RESPONDENT IN OPMV ---------------------------------------------- THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, KANNUR, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY (M.G.RAMACHANDRAN NAIR), REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682 011. BY ADV. SRI.M.JACOB MURICKAN RESPONDENTS: RESPONDENTS/PETITIONER & RESPONDENTS --------------------------------------------------- 1. V.NOUSHAD, S/O.K.V.ABDURAHIMAN, VITHINDAKATH, P.O.CHIRAKKAL, KANNUR, PIN-670 011. 2. PADINHARE VEETTIL RAJESH,S/O.RAGHAVAN, PADINHARE VEETTIL, NIDUVALLOOR, CHUZHALI.P.O. KANNUR, PIN-670 630. 3. V.NISHA,W/O.HEMARAJ, HEMANILAYAM, AROLI, P.O.PAPPINISSERY, KANNUR, PIN-670 561. 4. NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, BANK ROAD, KANNUR, KEECHERY.P.O., PIN-670 001. 5. NALLAVAN VEETTIL BYJU, S/O. P.K.BALAN, NALLAVAN VEETTIL, KEECHERY, P.O.PAPPINISSERY, KANNUR-670 561. 6. C.RANJITH, MADHAVI VILLA, P.O.CHIRAMMEL, KANNUR-670 011. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY delivered THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 1560 OF 2011 ============================ Dated this the 17th day of October 2011 JUDGMENT R.Basant, J. The Insurance company is the appellant. It was an accident involving two vehicles. Both vehicles were insured by different Insurance Companies. Both Insurance companies were made equally liable under the impugned award. 2. One of the insurers is the appellant. Called upon to explain and be specific, the learned counsel for the appellant submits that the appellant challenges only the quantum of compensation awarded. 3. Against a total claim of Rs.12 lakhs, the Tribunal had awarded an amount of Rs.11,56,900/- as compensation as per the details given in paragraph 22 of the impugned award which we extract below: Sl.No. head Amount awarded details 1 Loss of earning(total) Rs.54,000/- For one year 2 Loss of earning(partial) - MACA 1560/2011 2 Sl.No. head Amount awarded details 3 Medical and miscellaneous expenses Rs.63,100/- 4 Future treatment -- 5 Bystander expenses Rs. 1,300/- Rs.100/- per day for 13 days 6 Transportation expenses Rs. 5,500/- Covered by Ext.a7 and A8 series 7 Extra nourishment Rs.25,000/- Considering amputation of right hand 8 Damage to clothing -- 9 Pain and suffering Rs.50,000/- Considering amputation of right hand 10 Disability income Rs.6,48,000/- 4500x12=54000x16=864000 x75% 11 Loss of consortium -- 12 Loss on account of marriage prospects Rs.1,50,000/ Loss on account of marriage prospects 13 Loss of estate -- 14 Loss/reduction in earning capacity -- 15 Loss of amenities and conveniences Rs.1,50,000/- Considering amputation of right hand 16 Any other heads(review treatment) Rs.10,000 -do- total Rs.11,56,900/- Along with interest at the rate of 7.5% per annum from the date of petition to th date of realisation with cost Rs.11,000/- MACA 1560/2011 3 4. The injured/1st respondent/claimant was admittedly a young man, aged 18 years at the time of the accident. The accident occurred on 25/9/2003. The Tribunal accepted Rs.4500/- as the monthly income both for ascertaining the loss of earning (12 months) and for ascertaining the compensation for reduction in earning capacity . 5. Called upon to explain the challenge against the quantum and be specific, learned counsel for the appellant- Insurance company raises various contentions. First of all, it is contended that the quantum of compensation awarded under the head of reduction in earning capacity is excessive. This argument is built on the contention that the Tribunal had accepted 75% as the extent of reduction in earning capacity whereas the Medical Board had accepted only 50% as the physical disability suffered in Ext.X1 disability certificate. 6. There was total amputation of the right arm through the shoulder joint. We took assistance from entry 1 of Part II of the Ist Schedule to the Workmen's Compensation Act. The percentage of reduction of earning capacity under Entry 1 in the event of amputation of right arm through shoulder joint is 90%. In a claim for compensation for reduction in earning MACA 1560/2011 4 capacity, we are primarily concerned with the extent of reduction in earning capacity and not really the extent of physical disability. In the light of Entry 1 of Part II of Schedule-I of the Workmen's Compensation Act, we are of the opinion that the Tribunal which had taken 75% alone as the disability(as against 90% specified under Entry 1) cannot be said to have committed any error warranting appellate interference. 7. Learned counsel for the appellant then contends that the amount of Rs.1,50,000/-, Rs.1,50,000/- and Rs.50,000/- awarded under the heads of loss of marriage prospects, loss of amenities and pain and suffering respectively is excessive. We take note of the age of the claimant as also the nature of the physical disability suffered. We are unable to agree that the amounts awarded under any of the heads are excessive as to warrant appellate interference. 8. Learned counsel for the appellant then contends that the Tribunal had erred in accepting Rs.4500/- as the monthly income. The claim of the claimant was even greater. The accident took place on 25/9/1993. The victim had not completed 25 years on the date of the accident. The Tribunal taking into consideration the totality of the circumstances including MACA 1560/2011 5 possibility of improvement in prospects had reckoned Rs.4500/- as the monthly income. We are not persuaded to agree that the course adopted by the Tribunal on this aspect also requires appellate interference. In the facts and circumstances of this case, we are satisfied that the invocation of the appellate jurisdiction is not warranted as we do not perceive that the quantum of compensation awarded is not fair, just or reasonable. That another discerning mind may have awarded only a slightly lesser amount is no reason for us to invoke our appellate jurisdiction when we do not perceive the amount awarded to be not reasonable and just. 9. We are, in these circumstances satisfied that this appeal only deserves to be dismissed in limine. 10. In the result, a) this appeal is dismissed in limine. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. true copy P.S. TO JUDGE MACA 1560/2011 6