IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 MACA.No. 2124 of 2010(A) ----------------------- OPMV.571/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT : PETITIONER ------------------------ THAHA,S/O.KOYAKUTTY,NATTANNOOR, VADAKKATHIL,PULI VANCHI SOUTH,THODIYOOR. BY ADV. SRI.PRATHEESH.P RESPONDENTS : RESPONDENTS --------------- 1. MAHESHKUMAR,MAHESH BHAVANAM, ERAVICHIRA WEST,PATHARAM PO. 2. THE DIVISIONAL MANAGER,THE NEW INDIA INSURANCE CO.LTD.,KOLLAM. ADV. SRI.M.RAJAGOPALAN FOR R-2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.2124 of 2010-A ***************************** Dated this the 16th day of August, 2011 JUDGMENT BASANT, J. Claimant is the appellant. Against a total claim of Rs.2 lakhs, the Tribunal awarded an amount of Rs.1,15,000/- as compensation as per the details shown below: Sl.No. Head of compensation Amount awarded i) Loss of earning for 4 months Rs.12,000/- (4 X 3000) ii) Transport to the hospital Rs.1,000/- iii) Extra nourishment Rs.1,000/- iv) Damage to clothing and articles Rs.500/- v) Bystander's expenses Rs.2,200/- vi) Medical expenses Rs.45,647/- vii) Compensation for pain and suffering Rs.10,000/- viii) Compensation for continuing for permanent disability (Rs.2,000 X 12 X 17 X 8/100) Rs.32,640/- ix) Compensation for the loss of amenities in life Rs.10,000/- Total Rs.1,14,987/- 2. Compensation was claimed by the appellant/claimant for personal injuries suffered by him in a motor accident which took place on 03.05.2006. The appellant had suffered fracture of M.A.C.A No.2124 of 2010-A 2 the lower end of the right leg. He was an inpatient for a total period of 22 days in two spells. He was aged 32 years at the time of the accident. He claimed to be employed abroad, earning a monthly income of Rs.10,000/-. But no acceptable evidence whatsoever was adduced to show his actual income by his employment abroad. The claimant was referred to the Medical Board. The Medical Board assessed his disability to be 12%. The Tribunal accepted the reduction in earning capacity at 8% only. It is accordingly that the Tribunal proceeded to pass the impugned award. 3. The challenge in this appeal is directed only against the quantum of compensation awarded. We have heard the learned counsel for the appellant and respondent/insurance company. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on 3 specific grounds. He contends that the quantum of compensation awarded for pain and suffering is too low. Secondly he contends that the quantum of compensation awarded under the head of reduction in earning capacity is too low. Thirdly and finally it is contended that the compensation awarded for loss of amenities is also inadequate. M.A.C.A No.2124 of 2010-A 3 4. We take note of the nature of injuries and the period of treatment as an inpatient and later as an outpatient. We are satisfied that the amount of Rs.10,000/- awarded under the head of pain and suffering is reasonable and the same does not warrant any interference. 5. Coming to the quantum of compensation payable for reduction in earning capacity, the Tribunal accepted only Rs.2,000/- as the monthly income. The Tribunal had itself accepted Rs.3,000/- as the monthly income while ascertaining the loss of earnings for 4 months. But however when it came to the assessment/compensation payable for reduction in earning capacity, the Tribunal took only Rs.2,000/- as the monthly income. The learned counsel for the claimant submits that the approach of the Tribunal is incorrect. We take note of the fact that the accident had taken place in 2006. We are satisfied that Rs.3,000/- per mensem can safely been reckoned as the monthly income of the appellant. We find no reason to adopt a different salary when it comes to computation of the quantum of compensation payable for loss of earning capacity. 6. The learned counsel contends that 12% disability assessed by the Medical Board has been slashed down to 8% by M.A.C.A No.2124 of 2010-A 4 the Tribunal. We note that the appellant claims to be employed as a salesman. There is nothing to show that the resultant physical disability has resulted in identical reduction in earning capacity. While computing the compensation payable for reduction in earning capacity, what is crucial is not the actual physical disability, but the reflection of the physical disability on the earning capacity of the victim. Considering the nature of injuries – fracture of the lower end of the right leg, and the nature of employment of the appellant, we are satisfied that the conclusion of the Tribunal that only 8% can be reckoned relevant for the purpose of ascertaining reduction in earning capacity does not warrant any interference. 7. Coming to the quantum of compensation for loss of amenities, we note that 12% has been fixed as the physical disability by the Medical Board. The appellant was a young man, aged above 32 years and we are satisfied that for loss of amenities, he is entitled for a higher amount of compensation. This compensation has to be fixed considering the extent of physical disability. The fact that the 32 year old claimant will have to endure the physical disability for a long period of time hereafter has to be borne in mind. We will also have to take into M.A.C.A No.2124 of 2010-A 5 account of discomfiture and inconvenience etc. to be suffered by the appellant in the rest of his life. Shortened expectation of life will also enter as a relevant input while ascertaining the quantum of compensation payable for loss of amenities. Taking all the relevant circumstances into account, we are satisfied that Rs.20,000/- can be reckoned as the compensation payable for loss of amenities. 8. The learned counsel for the insurance company alertly points out that following the dictum in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] only 16 can be reckoned as the multiplier though the Tribunal has reckoned 17 as the multiplier. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.23,440/- in addition to the amount already awarded by the Tribunal. i) Compensation for reduction in earning power : Rs.13,440.00 [(3000 X 12 X 16 X 8/100 = 46,080 minus 32,640] ii) Compensation for loss of amenities : Rs.10,000.00 (20,000 minus 10,000) ...................... Total : Rs.23,440.00 ======== M.A.C.A No.2124 of 2010-A 6 10. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.23,440/- (Rupees Twenty three thousand four hundred and forty only) in addition to the amount already awarded by the Tribunal; c) We make it clear that the entire amount of compensation shall carry interest @ 7.5% per annum from the date of claim to the date of payment/deposit/realisation; d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/