IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 MACA.No. 2119 of 2006() ----------------------- OPMV.733/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER ----------------------------------- C.SAGAR, S/O. MADHAVAN, AGED 25 YEARS, NAVIGATTING OFFICER (3RD OFFICER), MERCHANT NAVY, RESIDING AT 'SAMUDRA', KEECHERY, P.O.PAPPINISSERY, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): 1ST RESPONDENT ------------------------------ MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.2119 of 2006 ---------------------------------------- Dated this the 19th day of March 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.20 lakhs as compensation for personal injuries suffered by him in a motor accident which occurred on 31/12/1999. He was aged 26 years on the date of the accident. He was a Navigating Officer in the Merchant Navy. He had come home on expiration of a contract when he suffered injuries. His earlier contract had expired on 08/08/1999. He suffered the accident on 31/12/1999. He had suffered extensive multiple injuries including multiple fractures - as many as 10 fractures including major fracture of the femur and frontal bones. Brain injury was also suffered. He was an in-patient for a period of 107 days in five spells. Last of such period of discharge as per the medical document produced was 16/10/2002. He had allegedly suffered permanent physical disability to the tune of 26%. In support of his claim, he examined himself as PW1 and a doctor as PW2. Exts.A1 to A19 M.A.C.A.No.2119/06 2 and Ext.X1 disability certificate were marked. The tribunal, on an anxious consideration of all the relevant circumstances came to the conclusion that the appellant is entitled to a total amount of Rs.6.24 lakhs as per the details given in paragraph 12 of the impugned award which we extract below: 1. Loss of earnings Rs.9000/- 2. Transportation expenses Rs.5,000/- 3. Medical expense Rs.3,90,728/- 4. Bystanders expenses Rs.16,950/- 5. Extra nourishment Rs.3,000/- 6. Pain and sufferings Rs.50,000/- 7. Future medical expense Rs.15,000/- 8. Compensation for loss of Rs.50,000/- enjoyment of life and loss of amenities 9. Loss of earning capacity Rs.84,250/- (1500 x 18 x 12 x 26/100) Total Rs.6,23,928/- Rounded to Rs.6,24,000/- 2. The appellants claim to be aggrieved by the impugned award. Called upon to explain the precise nature of challenge which the appellant wants to mount against the impugned M.A.C.A.No.2119/06 3 award, the learned counsel for the appellant primarily assails the impugned award on two specific grounds. The learned counsel first of all contends that the tribunal had gone grossly wrong in reckoning that the appellant must have been involuntarily unemployed for a period of six months only. Secondly it is contended that the tribunal was perverse in coming to the conclusion in spite of Ext.A5 letter of appointment that the monthly income of the appellant can be reckoned only at Rs.1,500/- per mensum. Ext.A5 shows that the appellant was engaged in a contract for the period from 09/12/1998 to 08/08/1999 for a monthly salary of Rs.1,890 US$ per mensum. He was entitled for certain other payments also, it is submitted. Though, at the relevant time, there was no contract entered into by the appellant, he would certainly have secured contracts similar to Ext.A5. Only because of the accident, he was not able to pursue such income earning activity till 2004. The learned counsel contends that for the period from 31/12/1999 to 09/11/2004, the appellant has suffered total loss of earnings. For this period, the appellant is entitled to compensation for loss of earnings reckoning Ext.A5 as a fair indication of the probable M.A.C.A.No.2119/06 4 monthly income which he would have got during this period. 3. Secondly, the learned counsel for the appellant contends that under the head of loss of earning capacity, only an amount of Rs.84,250/- has been awarded and while computing the amount payable under this head also, the tribunal committed the cardinal error of reckoning only Rs.1,500/- as the monthly income. 26% disability was suffered, accepted by the tribunal. Employment of the multiplicand as 1,500/- to ascertain the compensation for loss of earning capacity while resorting to the multiplier-multiplicand method is totally unjustifiable, contends the learned counsel for the appellant. The learned counsel for the respondent submits that it would be idle to accept Ext.A5 as the gospel truth. Except production of the contract, nothing has been made available to show that the appellant was drawing an equivalent of Rs.1,890 US$ per mensum. At any rate, it is evident that that cannot be reckoned as the average monthly income. Even going by the version of the appellant that he was not getting or doing work continuously. Broken periods of contracts were secured by him. If he were working for some period, it is necessarily followed by non-employment for some M.A.C.A.No.2119/06 5 further period. In these circumstances, even accepting Ext.A5, it may not be proper to assume that the same is the consistent monthly wages payable to the appellant. Appropriate and realistic assessment of the multiplicand is necessary while ascertaining the loss of earnings for involuntary unemployment from the date of the accident to the date on which he resumed employment. 4. We find merit in the contention of the learned counsel for the respondent/K.S.R.T.C. While we are in ready agreement that acceptance of 6 months wages alone as loss of earnings is not sufficient, we are unable to accept that the appellant, on account of the injury suffered, must have continued to be unemployed till 2004. We do take note of the fact that the last spell of hospitalisation ended only on 16/10/2002 that is about 36 months after the date of the accident. But there is nothing to persuade this court to jump to the conclusion that during this entire period of 31/12/1999 to 16/10/2002, the appellant was involuntarily unemployed completely. Between the spells of hospitalisation, there is no indication to suggest that the appellant was totally unemployed or unfit to be employed. While M.A.C.A.No.2119/06 6 we are satisfied that the amount awarded under the head loss of earnings and the period of involuntary unemployment reckoned by the tribunal is not sufficient and satisfactory, we are unable to agree that the appellant must be assumed to be involuntarily unemployed till 2004 or that he could have lost earnings completely for the period from 31/12/1999 (date of the accident) to 16/10/2002 (date of discharge after the last spell of hospitalisation). But even then, we are satisfied that there must have been complete loss of earnings and partial loss of earnings 31/12/1999 and 16/10/2002. It can safely be assumed that the appellant has been involuntarily unemployed and must have lost his earnings equal to 18 months. This includes complete loss of employment as also probable partial loss of income during the period 31/12/1999 to 16/10/2002. After that date, there is nothing to show that the appellant would have been completely or partially unemployed on account of the injury suffered in the accident. 5. The next question is about the monthly income which must be reckoned for the purpose of computing loss of earnings. A lot of imponderables are there. The appellant must M.A.C.A.No.2119/06 7 necessarily have been unemployed for some period of time, even otherwise considering the nature of his employment. It is not possible hence to completely import the figure shown in Ext.A5 as his monthly earnings. We agree that a lot of of imponderables are there; but we are satisfied that the probable average monthly income during this period can safely be reckoned at Rs.7,500/- per mensum. The appellant would consequently be entitled to an amount of Rs.7,500/- x 18 i.e. Rs.1,35,000/- as amount due under the head of loss of earnings. 6. We then come to the loss of earning capacity. That 26% physical disability has been suffered is proved satisfactorily by the materials available on records. We note under the head of pain and suffering, an amount of Rs.50,000/- has been awarded and for compensation for loss of enjoyment of life and loss of amenities, a further amount of Rs.50,000/- has been awarded. Even going by the version of the appellant, after he resumed his employment in 2004, there has been no reduction in earnings and in fact, the contention is that a much higher amount is being drawn by him in such employment. Physical disability has two fold reflections on a man's life. It reduces the earning capacity. M.A.C.A.No.2119/06 8 It reduces the quality of enjoyment of life which he can aspire to live. For both reflections, he is entitled to be compensated. In the instant case, though 26% disability is shown to have resulted, it is evident that there has been no reduction in earning capacity. He was employed as a Navigating Officer and the totality of indications including the contention of the appellant shows that the physical disability suffered has not really affected his actual monthly earnings from his employment as Navigating Officer. 7. Does this mean that the appellant is not entitled for any amount for loss of earning capacity? The learned counsel contends that if he had full compliment of physical capability, he may have received higher amounts as monthly income now. That remains in the area of speculation. Nothing is brought in evidence to indicate that the potential earnings of the appellant has been reduced every month on account of the physical disability suffered. But, we find merit in the contention of the learned counsel for the appellant that to turn out the same amount of work, the appellant will have to strain much harder physically in the wake of the physical disability suffered by him. Atleast for this dimension, for the difficulty experienced by himin M.A.C.A.No.2119/06 9 the actual working, court is bound to grant appropriate amount as compensation, contends counsel. We find merit in the contention. The tribunal adopted the multiplier multiplicand method and arrived at the figure of Rs.84,250/-. We are of the opinion that in the absence of specific evidence about any actual reduction in earnings, the employment of the multiplier multiplicand is unnecessary. But we are satisfied that a global amount can be awarded to the appellant by this court taking note of the additional efforts which he will have to employ in order to turn out the same amount of work with the impairment in the physical capabilities. It is undisputed that 26% physical disability has been suffered by him. Though only an amount of Rs.84,250/- has been fixed by the tribunal adopting the multiplier-multiplicand method, we are persuaded to agree that a total amount of Rs.1,50,000/- can be awarded as the global amount of compensation under this head of loss of earning capacity. Though the amounts awarded under the other heads are also assailed, we are not persuaded to agree, considering the inputs available, that the amount awarded under any other head warrants or demands appellate interference. M.A.C.A.No.2119/06 10 8. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.1,91,750/- (Rupees one lakh ninety one thousand seven hundred and fifty only) as compensation in addition to the amounts already awarded by the Tribunal. 1. Loss of earnings Rs.1,26,000/- [(Rs.7,500/- x 18) minus Rs.9,000/-] 2. Loss of earning capacity Rs.65,750/- (Global amount of Rs.1,50,000/- minus Rs.84,250/-) Total Rs.1,91,750/- 9. Needless to say, the total amount of compensation shall carry interest at the rate directed by the tribunal from the date of the petition till the date of payment. 10. This appeal is in these circumstances allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.2119/06 11 M.A.C.A.No.2119/06 12 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009