IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 MACA.No. 813 of 2005() ----------------------------------- OP(MV).1456/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANT/APPLICANT: -------------------------------------------------------------- JAMANTHEESWARA DEV, S/O. MRUTHYUNJAYAN AVITTOM, THIVILAKOM, VIZHINJAM VILLAGE, VENGANOOR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER KARAKONAN RESPONDENT(S): -------------------------- 1. BABU, S/O. SREEDHARAN, PADINJATTIL VEEDU, ATTIPRA, KULATHOOR P.O., THIRUVANANTHAPURAM. 2. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, KOTTARATHIL BUILDINGS PALAYLAM, THIRUVANANTHAPURAM. R1 BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL R2 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R.BASANT & N.K.BALAKRISHNAN, JJ. --------------------------------------------------- C.M.Appl.No.1137 of 2005 & M.A.C.A No.813 OF 2005 --------------------------------------------------- Dated this the 7th day of July, 2011 ORDER/JUDGMENT BASANT,J. Heard. Allowed. The delay of 45 days is condoned. M.A.C.A No.813 of 2005: Appellant is the claimant, who is a highly skilled technician working in Keltron aged 42 years. He suffered injuries in a motor accident on 15.3.1999. He claimed a total amount of Rs.5,78,000/-as compensation. The Tribunal awarded an amount of Rs.1,42,000/-as per the details shown below: 1. Loss of earnings : Rs. 18,380/- (for medical leave etc. availed) 2. Transport to hospital : Rs. 4 2,000/- 3.By standers expenses : Rs. 5,000/- 4.Extra nourishment : Rs. 2,000/- 4. Damage to clothing : Rs. 250/- 5. Pain and suffering : Rs. 15,000/- 6. Loss of earning capacity : Rs. 38,400/- (2000x12x8x20/100) 7. Medical and miscellaneous expenses : Rs. 5,500/- C.M.Appl.No.1137 of 2005 & M.A.C.A No.813 OF 2005 2 8. Loss of amenities : Rs. 15,000/- ---------------- Total Rs. 1,41,530/- ========= 2. The appellant/claimant claims to be aggrieved by the computation of compensation. Called upon to specifically explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant identifies three specific areas of challenge. 3. First of all it is contended that the amount of compensation awarded under the head of pain and suffering is painfully and perversely low and inadequate. Only an amount of Rs.15,000/- has been awarded. The appellant had suffered fracture shaft of right femur, compound fracture of both bones of the right leg, trochantric fracture, fracture of the right radius, a cut injury of the median and ulnar nerves and flexion tendon injury on the right hand all the fingers. He was treated by open reduction and internal fixation for all the fractures. Tendon and nerve repair of the right hand was done and he was an inpatient from 15.3.1999 to 15.5.99. He later continued as an out patient C.M.Appl.No.1137 of 2005 & M.A.C.A No.813 OF 2005 3 up to 30.09.99. He underwent physiotherapy. He was admitted again for the implant removal on 14.4.01 and was discharged on 25.4.2001. Considering the nature of the injuries and the long period of treatment undergone, the amount of Rs.15,000/- awarded under the head of pain and suffering is inadequate, contends the counsel. We agree. We feel that an amount of Rs. 25,000/- deserves to be awarded under that head as just and fair compensation. 4. Next the learned counsel contends that the compensation for loss of earning capacity assessed by the Tribunal is too meager and inadequate. The Tribunal found that for the moment, employment prospects and income from employment are not affected at all. However, the Tribunal realistically took note of the fact that after retirement at the age of 55 years the ability of the appellant to take up other employment may be affected. 29% permanent physical disability was reported in Ext.A16. The Tribunal however accepted the reduction in earning capacity to be 20% alone. From such post retiral employment the Tribunal assumed Rs.2,000/- would be the monthly income. Reckoning his C.M.Appl.No.1137 of 2005 & M.A.C.A No.813 OF 2005 4 age at 55, 8 was reckoned as multiplier as indicated under the second schedule. The learned counsel for the appellant submits that at the moment the appellant is earning an income exceeding Rs.6,000/-. The post retiral economic benefits from employment should not have been reckoned as Rs.2,000/- per mensem. It must have been reckoned at a reasonable higher rate, contends the counsel. 5. We take note of the the submissions. We find no merit in the challenge against acceptance of 20% as the reduction in earning capacity and 8 as the multiplier. 6. The learned counsel for the appellant submits that in any view of the matter reckoning Rs.2,000/- only as the monthly income is not justified. We find force in that submission. In coming to that conclusion, we take note of employment of the appellant as a highly skilled technician of the Keltron. Such a qualified person would find it easy to secure a lucrative employment even after his retirement. We must immediately take note that the benefit arising from accelerated consolidated payment will also have to be taken into consideration. At any rate, C.M.Appl.No.1137 of 2005 & M.A.C.A No.813 OF 2005 5 we are satisfied that if the monthly earning is raised to Rs. 3,000/- per mensem, the amount under the head of loss of earning capacity will be rendered fair, just and reasonable. The challenge on that ground can succeed to the above extent. 7. Thirdly the counsel contends that the loss of amenities reckoned at Rs.15,000/- is grossly inadequate. Sensory blunting of the right hand and limitation of hip and knee movements on the right side are the specific disability suffered. Though reduction in earning capacity has not immediately resulted, the appellant will have to live enduring those physical disabilities. This would impair the quality of life which he can aspire to lead. 8. He, a person aged 42 years is entitled to be adequately compensated for such loss of amenities, contends the learned counsel. We agree with the counsel. We are satisfied that the quantum of compensation awarded under that head can be raised to Rs.25,000/-. 9. On the basis of the above discussions we come to the conclusion that the appellant is entitled to the following further amount as compensation in addition to the amount already C.M.Appl.No.1137 of 2005 & M.A.C.A No.813 OF 2005 6 awarded by the Tribunal: 1. Pain and suffering : Rs.10,000/- (Rs.25,000/-minus Rs.15,000/-) 2. Loss of amenities : Rs.10,000/- (Rs.25,000/- minus Rs.15,000/-) 3. Loss of earning capacity : Rs.19,200/- (Rs.3,000/-x12x8x20/100 minus Rs.38,400) ------------------ Total Rs.39,200/- ======== 10. We are satisfied that the respondent can be directed to pay the said further amount of Rs.39,200/- (Rupees thirty nine thousand and two hundred only) also to the appellant. 11. In the result: a. This appeal is allowed in part. b. Respondents are directed to pay a further amount of Rs.39,200/- (Rupees thirty nine thousand and two hundred only) in addition to the amount already directed. c. The entire amount shall carry interest at the rate directed by the Tribunal from the date of claim to the date of payment. C.M.Appl.No.1137 of 2005 & M.A.C.A No.813 OF 2005 7 d.All other directions of the Tribunal are upheld. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns