IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 MACA.No. 327 of 2005(D) ---------------------- OPMV.425/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT: PETITIONER ------------------------ SHAJIMON K.J. @ K.J.SHAJI, S/O.JOSEPH, KOIPPURATH HOUSE, KADAYANICKADU, MANIMALA. VELLAVOOOR VILLAGE, CHANGANACHERRY. BY ADV. SRI.JIJO JOSEPH RESPONDENT(S): RESPONDENTS. --------------------------- 1. V.SUBHA LAKSHMY, W/O.VEERASWAMY, CHELLAPURATHUMMAL, VANDITHAVALAM, CHITTOOR, PALAKKAD. 2. SCARIA, S/O.ABRAHAM, VATTATHAKIDI HOUSE, NEAR PUTHENPALAM, CHINGAVANAM, NATTAKOM, KOTTAYAM DISTRICT. 3. UNITED INDIA INSURANCE CO. LTD, RAMANATHAPURAM, TRICHY ROAD, COIMBATORE-45. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.327 of 2005 ------------------------------------- Dated this the 18th day of March, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.8.99 lakhs as compensation for personal injuries suffered by him in a motor accident which occurred on 15.05.2001. He claimed to be a dealer in Hero Honda vehicles. It was a partnership firm. He was entitled to Rs.4,000/- per mensem as salary for services rendered and 50% of the profits made. He had suffered multiple fractures including type II open fracture of the right patella, fracture of tibia and fibula (open comminuted fracture of right tibia with compound fracture of right tibia and fibula) and fracture of distal Phalanx of the third and fourth fingers of the right hand. He was an inpatient for a period of about 3 months - 16.05.2001 to 08.08.2001. He had to continue treatment as an outpatient for a period of about 18 months. He underwent surgery. He was treated with skeletal traction. Patella was fixed by circumferential wiring. For the tibial fracture ilizarov fixation M.A.C.A No.327 of 2005 2 was done. He allegedly suffered a permanent physical disability of 18% under Mc-Bride Scale. There was limitation in plantar flexion of the right ankle and difficulty in flexion of right knee beyond 1000. He was unable to walk, climb or run due to osteo arthritis of the right knee which suffered injuries. 2. Before the Tribunal the claimant examined himself as PW1 and proved Exts.A1 to A13. The Tribunal on an anxious consideration of all the relevant circumstances proceeded to pass the impugned award holding that the appellant is entitled to an amount of Rs.1.31 lakhs as compensation. That amount was directed to be paid with interest @ 6% per annum from the date of the petition to the date of payment. The amounts are seen awarded under the following heads. i) Medical expenses (against bills produced) : Rs.53,000/- ii) Pain and suffering : Rs.8,000/- iii) Bystander's expenses and extra nourishment: Rs. 3,000/- iv) Transportation and damage to clothing etc. : Rs. 2,000/- M.A.C.A No.327 of 2005 3 v) Loss of earnings (1,500 X 5) : Rs. 7,500/- vi) Disability (1500 X 12 X 16 X 18/100 = 51,840/-) : Rs.50,000/-(rounded off to this figure) vii) Loss of amenities/ enjoyment of life : Rs. 7,500/- v) Future expenses : Rs. 5,000/- ................... Total : Rs.1,36,000/- ................... On account of arithmetical errors it appears that only an amount of Rs.1,31,000/- is awarded. 3. The appellant claims to be aggrieved by the impugned award. What is the reason ? Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant first of all contends that the arithmetical error had gone to his disadvantage. After ascertaining the disability to be at Rs.51,840/-, the course adopted by the Tribunal of rounding it off to Rs.50,000/- to the disadvantage of the appellant is not justified, it is further contended. The learned counsel submits that considering the nature of the multiple fracture suffered by M.A.C.A No.327 of 2005 4 the appellant and the total period of hospitalisation as also the later treatment as an outpatient, the amount of compensation awarded under the head of pain and suffering - Rs.8,000/- is grossly and painfully low. The counsel then points out that the amount of Rs.2,000/- awarded under the composite head of transport and damage to clothing is again unrealistic considering the nature and period of treatment - both as inpatient and outpatient. 4. The counsel then points out that disability to the extent of 18% is certified to have been suffered. The Tribunal did not specifically state what was the disability admitted. But surprisingly proceeded to award only an amount of Rs.7,500/- under the head of loss of amenities/enjoyment. The counsel then submits that at any rate reckoning of the multiplicand at Rs.1,500/- is totally unrealistic considering the data made available in the form of Ext.A12 balance sheet and Ext.A13 partnership agreement. Finally the counsel submits that the Tribunal has awarded only interest @ 6% per annum. Relying on precedents it is contended that interest must have been awarded at least @ 7.5% per annum. M.A.C.A No.327 of 2005 5 5. We have rendered our anxious consideration to all the relevant circumstances. We are in agreement with the learned counsel for the appellant that the arithmetical error deserves at any rate to be corrected. We are further satisfied that interest must have been awarded at least @ 7.5% per annum. 6. Considering the nature of the multiple fracture suffered and the period of inpatient and outpatient treatment, we agree with the counsel that the amount awarded under the head of pain and suffering is too low. Considering the materials available, we are satisfied that the monthly income of the appellant must have been reckoned at a higher figure. Of course the appellant was not a monthly wage earner, but was running a dealership in partnership with another. The managerial input and service rendered in connection with business has to be converted in terms of money to ascertain the multiplicand. We have looked at the nature of the alleged disability. We find no reason not to accept the disability to be 18% as certified by the doctor but we agree that the learned counsel for the insurance company who contends that the said physical disability of 18% is unlikely to have an identical reflection on the earning capacity of the appellant considering the nature of his income earning M.A.C.A No.327 of 2005 6 activity - as a partner in a dealership firm. We accept that there must have been reduction in earning capacity at 9% only. Monthly income can be reckoned at Rs.4,000/-. We agree that the 39 year old appellant will have to endure the disability and it would consequently impair the quality of enjoyment of life for a further period of 3 decades, taking into account the longevity of the average Indians. We are, in these circumstances, satisfied that the appellant is entitled to enhancement of compensation. He would consequently be entitled to the following further amounts in addition to the amounts already awarded by the Tribunal. i) Bystander's expenses and extra nourishment (150 X 84 minus 3,000) : Rs. 9,600/- more ii) Transport to hospital and clothing (5000 minus 2000) : Rs. 3,000/- more iii) Pain and suffering 20000 minus 8000) : Rs.12,000/- iv) Loss of earnings (4000 X 5 minus 7500) : Rs.12,500/- v) Disability [(4000 X 12 X 16 X 9/100 = 69,120) minus 50000) : Rs.19,120/- M.A.C.A No.327 of 2005 7 vi) Loss of amenities/enjoyment (15000 minus 7500) : Rs. 7,500/- vii) Correction of arithmetical error : Rs. 5,000/- ............... Total Rs.68,720/- ............... 7. We further direct that the entire amount of compensation shall bear interest @ 7.5% from the date of the petition till payment. 8. This appeal is allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-