IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 MACA.No. 753 of 2005() ---------------------- OPMV.273/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT IN THE O(MV): ------------------------ M/S. NATIONAL INSURANCE COMPANY LTD., CALICUT, D.O.II, P.B.NO.811, NOOR COMPLEX, MAVOOR ROAD, NEAR ARAYIDATH PALAM, CALICUT, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIM SECTION, AJAY VIHAR, M.G. ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENTS:PETITIONER & RESPONDENTS 1,2,4 &5 IN THE OP(MV) --------------- 1. AYOOB PONNACHAN @ AYOOB. P., S/O. MOIDEENKUTTY, 26 YEARS, THATTASSERIMADE HOUSE, P.O. THENHIPPALAM, DEVATHIYAL, REP. THROUGH ITS POWER OF ATTORNEY HOLDER, KOLOTH VALASSERY MOHAMMED S/O. ASSANKUTTY, 52 YEARS, VALASSERY HOUSE, KADUKKATTUPARA, P.O. THENIPALAM. 2. ARAVINDAN K.M., S/O. MADHAVAN NAIR, 36 YEARS, KIZHAKEMUTHAL HOUSE, P.O. PALATH PALATH AMSOM DESOM, CHELANOOR PANCHAYATH. 3. K.A. RAZACK, S/O. K.V.K. KUTTY, KONARAMBATH HOUSE, P.O. PERUVAYAL, KOZHIKODE. 4. ABDULSALAM T., 24 YEARS, S/O. MOTHI. T., MUNDAKKALAPIL HOUSE, P.O. THENHIPPALAM, NEEROLPALAM. * 5. K. BASHEER, S/O. MOHAMMED KUTTY, KUTHIREDATH HOUSE, P.O. VELIMUKKU, THAYILKKADAVU. Respondent No.5 is deleted from the party array at the risk of the appellant as per order dated 29/10/2009 in I.A.No.2926/2009. ADV. SRI.P.CHANDRASEKHAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAYPASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A.No.753 of 2005 ---------------------------------------- Dated this the 12th day of October 2011 J U D G M E N T R.BASANT,J Insurance company is the appellant. The claimant has preferred cross objections also. The claimant claimed compensation under Section 166 of the Motor Vehicles Act for the personal injuries suffered by him in a motor accident which took place on 16/1/2002. Claim was initially for Rs.3,00,000/-. Later, the claim was amended and enhanced to Rs.4,00,000/-. 2. The claimant had suffered multiple injuries including comminuted fracture of the shaft of right femur which was treated by surgery on 17/1/2002. Open interlocking nailing and bone grafting was done. He was an in-patient from 16/01/2002 to 26/1/2002 initially. He was later admitted to another hospital where he continued as an in-patient from 16/5/2003 to 20/05/2003. Nailing and bone grafting was repeated. He allegedly had suffered permanent disability. At the first hospital where he was treated, the disability was assessed to be 10%. After second admission in the hospital, his permanent disability M.A.C.A.No.753 of 2005 2 was assessed by the doctor at the Medical College Hospital on 22/04/2004. It was held that he had permanent disability of 18%. He had limping of right leg, pain during walking, difficulty for squatting, surgical scar on the right thigh - 30cms length and shortening of one inch of the right leg. It was, in these circumstances, that the disability was assessed to be at 18% on 22/4/2004. That document is also available in evidence though not marked separately. The tribunal, by the impugned award directed payment of a total amount of Rs.2,45,500/- as per the details which are given below: Head Amount (Rs.) Pain and suffering 20,000/- Permanent disability 65,000/- (3,000x12x15x10/100) loss of earning power 40,000/- shortening of leg and inconvenience caused 25,000/- loss of earnings (6 months) 36,000/- (3,000 x 12) transportation to hospital 2,000/- extra nourishment 2,000/- medical expenses 55,000/- Damage to cloths 500/- Total 2,45,500/- 3. The insurance company assails the award on one short ground. The learned counsel argues that after awarding an amount of Rs.65,000/- under the head of permanent disability by M.A.C.A.No.753 of 2005 3 resorting to the multiplier-multiplicand method, the tribunal erred in granting a further amount of Rs.40,000/- under the head of loss of earning power. This is unjustified and there is no justifiable reason for awarding a further amount of Rs.40,000/- under the head of loss of earning power, contends counsel. The learned counsel for the insurance company points out that for loss of amenities, a further amount of Rs.25,000/- has been awarded though it is described as compensation for shortening of leg and inconvenience caused. Compensation having already been awarded for permanent disability adopting the multiplier- multiplicand method and further amount having already been awarded for loss of amenities describing it to be shortening of leg and inconvenience caused, there is no justification for the award of a further amount of Rs.40,000/- under the head of loss of earning power, contends the learned counsel for the appellant. 4. We find merit in that contention. Absolutely no justifiable reason has been shown to award a further amount of Rs.40,000/- as compensation under the head of loss of earning power. The said amount is awarded by the tribunal adopting the M.A.C.A.No.753 of 2005 4 following simple reasons “for loss of earning power, I am awarding an amount of Rs.40,000/- instead of deducting 1/3 amount calculated for disability”. We agree with the learned counsel for the appellant and accept that this award of a further amount of Rs.40,000/- under the head of loss of earning power is not justified. 5. The learned counsel for the claimant submits that in any view of the matter, the quantum of compensation awarded is too inadequate. The learned counsel advances two reasons in support of his contention. According to the learned counsel, the claimant was employed abroad. He was earning a much higher income. The tribunal had reckoned only Rs.3,000/- as the monthly income. For the purpose of ascertaining loss of earnings as well as loss of earning power (calling it permanent disability) by resort to the multiplier-multiplicand method, considering the employment abroad of the appellant as a cook, a higher amount of monthly income ought to have been accepted, contends counsel. The learned counsel points out that even for unskilled manual worker and non-earning home makers, an amount of Rs.3,000/- can safely be reckoned as the monthly M.A.C.A.No.753 of 2005 5 income going by the dictum in Lata Wadhwa and Others v. State of Bihar and Others [2001 SC 3218] and Laxmi Devi v. Mohammad Tabbar [2008 ACJ 1488]. In these circumstances, a higher monthly income ought to have been adopted for the appellant who admittedly had a secured employment abroad, which he allegedly could not pursue after the accident because of the permanent disability. Taking all the relevant circumstances into account, we are of the opinion that Rs.4,000/- can safely be reckoned as the monthly income for the purpose of ascertaining loss of earnings as well as loss of earning power. 6. The learned counsel for the appellant next submits that the tribunal had gone wrong in choosing to accept and act upon the disability certificate issued on 11/6/2002 when the subsequent disability certificate issued on 22/4/2004 clearly shows that the permanent disability was suffered to the tune of 18%. We find merit in this contention. The earlier disability certificate dated 11/6/2002 was issued by the doctor who treated the appellant at the first hospital evidently without taking note of the complication which developed later which obliged admission M.A.C.A.No.753 of 2005 6 of the appellant at Alshifa hospital from 16/5/2003 to 20/05/2003. We are satisfied, in these circumstances, that the certificate dated 22/4/2004 issued by the Assistant Professor (Orthopedic), Medical College Hospital can safely be preferred in this case. 7. The above discussions lead us to the conclusion that the claimant is entitled for an amount of Rs.3,08,020/- as compensation on a re-working of the quantum of compensation as shown below: i) Pain and suffering : Rs. 20,000.00 (as awarded by the Tribunal) ii) Loss of earnings : Rs. 48,000.00 (only Rs.36,000/- awarded by (Rs.4000x12months) the Tribunal) iii) Transport to hospital : Rs. 2,000.00 (as awarded by the Tribunal) iv) Extra nourishment : Rs. 2,000.00 (as awarded by the Tribunal) v) Medical expenses : Rs. 55,000.00 (as awarded by the Tribunal) vi) Damage to clothing : Rs. 500.00 (as awarded by the Tribunal) vii) Loss of amenities : Rs. 25,000.00 (as awarded by the Tribunal though under the head `inconvenience caused') M.A.C.A.No.753 of 2005 7 viii) Reduction in earning capacity : Rs.1,55,520.00 (Rs.65,000/- awarded by the (4000X12X18X18/100) Tribunal under the head `permanent disability”) .......................... Total :Rs.3,08,020.00 =========== 8. The learned counsel for the claimant contends that interest has been awarded only @ 6% per annum. The learned counsel argues and we agree that interest is liable to be awarded at a higher rate. We hold that interest is liable to be paid @ 7.5% per annum. 9. The learned counsel for the claimant argues that proportionate cost as held in Jeena V. Satheesh Babu.K [2011 (3) KLT 943] is liable to be awarded. We agree with the learned counsel for the claimant. 10. In the result: a) This appeal and the Cross Objection are allowed in part ; b) In supersession of the award passed by the Tribunal, the claimant is found entitled to a total amount of Rs.3,08,020/- as compensation; M.A.C.A.No.753 of 2005 8 c) Interest shall be payable on the entire amount of compensation @ 7.5% per annum from the date of the claim to the date of payment/realisation; d) The claimant is entitled to proportionate cost before the Tribunal as held in Jeena (supra); e) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge M.A.C.A.No.753 of 2005 9 M.A.C.A.No.753 of 2005 10 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010