IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 MACA.No. 715 of 2005(D) ---------------------- O.P(MV) No.1110/98 of the Motor Accident Claims Tribunal, Kottayam) APPELLANT/PETITIONER ----------------------- P.C.THANKAPPAN, OOMMACHERIYIL HOUSE, VAZHACHIRA BHAGOM, CHINGAVANAM, KOTTAYAM. BY ADV. SRI.P.RAVINDRA BABU RESPONDENTS : RESPONDENTS --------------- 1. K.K.JOHN, KOORAKKALAYIL HOUSE, CHINGAVANAM P.O., KOTTAYAM. 2. T.R.HARIDASAN, S/O.RAJAPPAN, SUCCANA BHAGOM, PUTHUVEL, PALLAM P.O. 3. ORIENTAL INSURANCE CO.LTD., KOTTAYAM BRANCH, REPRESENTED BY ITS BRANCH MANAGER. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** M.A.C.A No.715 of 2005-D ***************************** Dated this the 12th day of July, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident that took place on 19.02.1998 against a total claim of Rs.1.5 lakhs, the Tribunal awarded an amount of Rs.28,059/- as per the details shown below: i) Loss of earning : Rs. 1,309.00 (7 days) ii) Transport to hospital : Rs. 250.00 iii) Medical expenses : Rs. 1,500.00 iv) Pain and suffering : Rs.10,000.00 v) Disability/loss of amenities: Rs.15,000.00 ------------------- Total : Rs.28,059.00 ======== 2. The learned counsel for the appellant challenges the quantum of compensation awarded. The appellant was aged about 40 years. He underwent treatment at the Medical College Hospital, Kottayam, from 19.02.98 to 26.02.1998. He had suffered fracture neck of humerus left side, open fracture M.A.C.A No.715 of 2005-D 2 dislocation metacarpo phalangeal joint of left index finger, fracture proximal phalanx of index finger and fracture 3rd and 4th metacarpal and styloid process of radius left side. He was treated by surgery and plaster cast application. After discharge, he was directed to continue treatment as an outpatient. He had allegedly suffered physical disability as a result of the injuries. The percentage of disability is assessed by the doctor at the Medical College to be 11% as per the Mc brides scale. The following are the items of alleged disability suffered by him. i) Total ankylosis of metacarpo phalangeal joint left index finger in mid position, ii) Ankylosis of distal and proximal interphalangeal joint index finger, iii) Arc of motion of entire thumb is reduced with limitation of metacarpo phalangeal movement from full extension to 300 flexon, iv) Stiffness of left shoulder as evidenced by reduced last 30 degree range of abduction and flexon. 3. We have heard the learned counsel for the appellant and the learned counsel for the 3rd respondent insurance company. The learned counsel for the appellant first of all M.A.C.A No.715 of 2005-D 3 contends that the quantum of compensation awarded under the head of loss of earning – Rs.1,309/-, is totally unreal and low. As per Ext.A6, he was drawing an income of Rs.5516/- every month as in August, 2000. The accident took place on 19.02.1998. It is reasonable to assume that the appellant must have been compelled to suffer involuntary unemployment for a period of two months. We are satisfied, in these circumstances, that an amount of Rs.10,000/- can be awarded as compensation under that head. For transport to hospital, only an amount of Rs.2,500/- was awarded. For extra nourishment, damage to clothing, bystander's expenses etc., no amount whatsoever was awarded. Taking all the relevant circumstances into account including the period of hospitalisation, the nature of injuries and the nature of treatment given, we are satisfied that an amount of Rs.2,500/- can be awarded under the composite head of transport to hospital, extra nourishment, damage to clothing and bystander's expenses. For medical expenses though no bills were produced, an amount of Rs.1,500/- was awarded as compensation and we find no reason to interfere with the quantum awarded under that head considering the period of hospitalisation – 7 days. M.A.C.A No.715 of 2005-D 4 4. for pain and suffering, only an amount of Rs.10,000/- has been awarded. Considering the multiple fractures suffered and the treatement, we are satisfied that an amount of Rs.17,500/- can be awarded under that head. 5. Ext.A8 disability certificate shows that 11% physical disability has been suffered. The said doctor has not been examined . The appellant is stated to be a company worker. At any rate, there is significant of absence of evidence to show that the alleged physical disability must have impaired the earning capacity of the appellant. The Tribunal, in these circumstances, cannot be found fault with for not adopting the multiplier- multiplicand method to ascertain the reduction in earning capacity. The Tribunal did factually note that there was physical disability suffered. Ext.A8 gives an indication about the nature of the disability. The appellant was a person, aged about 40 years. Even assuming that the disability would not lead to reduction in earning capacity, an appropriate amount of compensation ought to have been awarded under the head of compensation for physical disability/loss of amenities/impairment in the quality of enjoyment of life. Only an amount of Rs.15,000/- has been awarded and we feel that an amount of Rs.30,000/- can M.A.C.A No.715 of 2005-D 5 be fixed as compensation under this head. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.33,441.00 as per the details shown below: i) Loss of earning : (5,000 X 2 minus 1,309) : Rs.8,691.00 ii) Extra nourishment, damage to clothing, transport to hospital & bystander's expenses : (2,500 minus 250) : Rs.2,250.00 iii) Pain and suffering : (17,500 minus 10,000) : Rs.7,500.00 iv) Compensation for disability/loss of amenities : (30,000 minus 15,000) : Rs.15,000.00 ------------------- Total : Rs.33,441.00 ======== 7. The appellant, we hold, is entitled for a further amount of Rs.33,441/- in addition to the amount already awarded by the Tribunal. The entire amount of compensation shall carry interest as directed by the Tribunal from the date of petition to the date of payment. M.A.C.A No.715 of 2005-D 6 8. In the result: a) This appeal is allowed in part; b) It is held that the appellant is entitled to a further amount of Rs.33,441/- (Rupees Thirty three thousand four hundred and forty one only) in addition to the amount already awarded by the Tribunal; c) We direct that the entire amount of compensation shall carry interest at the rate and for the period mentioned in the impugned award; d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (N.K.BALAKRISHNAN, JUDGE) rtr/ M.A.C.A No.715 of 2005-D 7 R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** C.M.Appl.No.267 of 2005 in M.A.C.A No.232 of 2005-B ***************************** Dated this the 12th day of July, 2011 ORDER BASANT, J. This petition is to condone the delay of 52 days in filing the M.A.C.A. We take a lenient view. Petition allowed. Delay condoned. (R.BASANT, JUDGE) (N.K.BALAKRISHNAN, JUDGE) rtr/ M.A.C.A No.715 of 2005-D 8 R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** C.M.Appl.No.1005 of 2005 in M.A.C.A No.715 of 2005-D ***************************** M.A.C.A No.715 of 2005-D 9 Dated this the 12th day of July, 2011 ORDER BASANT, J. This petition is to condone the delay of 144 days in filing the M.A.C.A. We take a lenient view. Petition allowed. Delay condoned. (R.BASANT, JUDGE) (N.K.BALAKRISHNAN, JUDGE) rtr/