IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 MACA.No. 1257 of 2005() ----------------------- OPMV.757/1998 of M.A.C.T. ALAPPUZHA .................... APPELLANT/PETITIONER IN OP(MV) ----------------------------------- VARKEY, S/O.FABIN, KAKKARIYIL, WARD NO. X. CHERTHALA SOUTH, PANCHAYATH. BY ADV. SRI.BABU VARGHESE, SENIOR ADVOCATE SRI.A.N.SANTHOSH SRI.P.V.BABY RESPONDENTS/RESPONDENTS 1,2 & 4 IN OP(MV) --------------------------- 1. NAZAR, S/O.MUHAMMED KOYA, MADAPPALLIL, VARNAM P. CHERTHALA. 2. PRABHUKUMAR, S/O.THANKAPPAN, PUTHEN PURACKAL, CHARMANGALAM P.O. CHERTHALA. 3. THE ORIENTAL INSURANCE COMPANY LTD. DIVISONAL OFFICER, T.H.TOWERS, MARKET ROAD, MOOVATTUPPUZHA 686 673. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A.No.1257 of 2005 ---------------------------------------- Dated this the 11th day of August 2011 J U D G M E N T R.BASANT,J Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 27/4/1998. Against a total claim of Rs.1,15,500/-, the tribunal awarded a total amount of Rs.16,600/- as compensation as per the details shown below: Sl. No. Head Amount claimed Rs. Amount awarded Rs. 1. Pain and sufferings 25000 5000 2. Loss of amenities 30000 Nil 3. Medical Expenses 8000 4100 4. Transportation expenses 1000 500 5. Loss of earnings 18000 Nil 6. Bystander expenses 1000 500 7. Disability 25000 6000 8. Future medical expenses Nil 9. Damage to cycle 500 Total 16600 2. The appellant had suffered fracture of fibula. He was an in-patient for three days. He was aged 75 years at the time of M.A.C.A.No.1257 of 2005 2 the accident. He had suffered physical disability to the tune of 12% and the same is borne out by the disability certificate Ext.A9 issued by the doctor. The appellant examined himself as PW1. 3. We have heard the learned counsel for the appellant/claimant and respondent/Insurance Company. The challenge is raised on the sole ground that the quantum of compensation awarded is not fair, reasonable and just. 4. Called upon to explain and be specific, the learned counsel for the appellant contends that for the appellant, a person aged about 75 years, the quantum of compensation awarded under the head of pain and suffering is painfully low. He was an in-patient for three days. He had suffered fracture of the fibula. He must have continued treatment thereafter for some period of time. At any rate, the amount of Rs.5,000/- awarded by the tribunal for pain and suffering is grossly inadequate, contends the counsel. We agree. We are satisfied that an amount of Rs.10,000/- can be awarded as compensation under that head. 5. The appellant claims to be employed and earning an M.A.C.A.No.1257 of 2005 3 income of Rs.3,000/- per month. Even in the absence of any better evidence, in the light of the oral evidence tendered by him, we are satisfied that the presumption of prudence permissible under clause 6 of schedule 1 of the Motor Vehicles Act can safely be invoked in his favour. It is reasonable to assume that he would have been involuntarily unemployed for a period of two months. 6. The evidence clearly shows that the appellant has suffered disability. The certificate shows that the disability was to the tune of 12%. The tribunal did not separately assess compensation payable for reduction in earning capacity and loss of amenities. Reckoning 5 as the multiplier as permitted by Sarla Verma v. D.T.C [(2009)6 SCC 121] and reckoning Rs.1,250/- as the monthly income, we are satisfied that an amount of Rs.9,000/- can be awarded under the head of reduction in earning capacity. Only an amount of Rs.6,000/- has been awarded under that head. Considering the advanced age of the appellant and the nature of disability, we are satisfied that a separate amount ought to have been awarded under the head of loss of amenities. We fix that amount to be Rs.10,000/-. M.A.C.A.No.1257 of 2005 4 7. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount in addition to the amount already awarded by the tribunal. Pain and suffering Rs.5,000/- (Rs.10,000/- minus Rs.5,000/- Reduction in earning capacity Rs.3,000/- [Rs.9,000/- (Rs.1,250/- x 12 x 5 x 12/100) minus Rs.6,000/-] Loss of earnings Rs.2,500/- (Rs.1,250/- x 2) Loss of amenities Rs.10,000/- ------------------- Total Rs.20,500/- ======== 8. Interest has been awarded by the tribunal only at the rate of 6% per annum. The learned counsel argues and we agree that interest ought to have been awarded atleast at the rate of 7.5% per annum. 9. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of M.A.C.A.No.1257 of 2005 5 Rs.20,500/- (Rupees twenty thousand and five hundred only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the petition to the date of deposit/realisation. d) 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.1257 of 2005 6 M.A.C.A.No.1257 of 2005 7 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010