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. 296 of 2005 ---------------------- OPMV.870/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT: APPELLANT/PETITIONER: ----------------------------------- ABDUL GAFOOR, S/O. AMMED, MOOTHALATHIL HOUSE, AROOR POST, KAKKATTIL, VADAKARA, KOZHIKODE. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENTS: --------------- 1. P.T. RADHAKRISHNAN, S/O. KANNAN, PUTHANPURAYIL HOUSE, KOLARATTUR STREET, CHOMBALA POST, VADAKARA. 2. M/S. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, WHITE LINES BUILDING, KALLAI ROAD, KOZHIKODE. ADV. SMT.RAJI T.BHASKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVIERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 296 OF 2005 ============================ Dated this the 11th day of August 2011 JUDGMENT R.Basant, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him as a result of a motor accident which took place on 22/1/1996. Against a claim of Rs.2,00,000/-, the Tribunal awarded only an amount of Rs.1,01,700/- as per the details given below: 1) Pain and suffering :Rs.15,000/- 2)Loss of earning :Rs.4500 (3x1500) 3)Transport to hospital :Rs.1,000/- 4)Medical and miscellaneous expenses :Rs.20,000/- 5)Reduction in earning capacity:Rs.61,200(1500x12x17x20/100) Total :Rs.1,01,700/- 2. The learned counsel for the appellant contends that the amounts awarded are grossly inadequate considering the nature MACA 296/2005 2 of the injuries and its consequences. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the quantum of monthly income reckoned by the Tribunal (1500/- per mensem) is grossly and perversely low. The appellant was driving a jeep at the time of the accident. He was a qualified driver. He was aged only 24 years. He had claimed that his monthly income was Rs.2500/-. The Tribunal only reckoned Rs.1500/- as the monthly income. The Tribunal ought to have noted that even for a non- earning person as early as in 1994 the Legislature has permitted a presumption of prudence that such person also must have been earning Rs.1250/- . For a skilled driver like the petitioner in 1996, certainly a higher amount ought to have been accepted as monthly income, submits the learned counsel. We agree with the learned counsel. We are satisfied that Rs.2,000/- can safely be accepted as the monthly income. 4. It is next contended that the compensation awarded under the head of loss of earning is inadequate. The appellant had suffered fracture of the neck of femur right hip, tibial plato MACA 296/2005 3 fracture with ligamentous injury to the right knee. He was an inpatient in different spells and the court below has noted from the records that he had continued to be under treatment from 23/1/1996 to 21/8/1996. Compensation for loss of earnings must have been granted at least for this period of seven months as borne out by Exts.A2/A8, contends counsel. Learned counsel for the appellant is unable to furnish to us the precise dates of hospitalization . Suffice it to say, we have evidence to show that the treatment had continued for a period of seven months. In the absence of specific information about the dates of hospitalization, we find it absolutely safe in the circumstances to assume that the appellant must have been involuntarily unemployed for a period of six months as a result of the accident. 5. Learned counsel for the appellant then contends relying on Ext.A10 certificate that the Tribunal has erred in not awarding any compensation for future expenses. That certificate issued by the Doctor indicates that hip fracture suffered by the appellant had led to avascular necrosis and he may require total hip replacement procedure in future. MACA 296/2005 4 Ligamentous reconstruction of the right knee may also be necessary if symptoms aggravate, it is mentioned. A period of 15 years has elapsed from the date of the accident and as yet there is no evidence to show that hip replacement or ligamentous reconstruction of right knee has become necessary. At any rate, taking all the relevant facts, we are satisfied that a total amount of Rs.27,500/-(7500/- more) can be awarded under the head of medical and miscellaneous expenses including future expenses. 6. Finally it is contended that after accepting that physical disability to the tune of 20% has been suffered by the appellant on the basis of Ext.X1 report of the Medical Board, the Tribunal erred in not awarding adequate and just amount as compensation for reduction in earning capacity. The Tribunal also erred in not awarding any amount under the head of loss of amenities for the appellant, a person aged 24 years, who had suffered 20% disability. Learned counsel for the appellant then submits that the Tribunal has erred in reckoning only 17 as the multiplier. Going by the dictum in Sarla Verma v. Delhi Transport corporation[(2009)6 S.C.C. 121], the appellant is MACA 296/2005 5 entitled to get 18 reckoned as the multiplier. We agree with the learned counsel for the appellant on this aspect. 7. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.70,200/- as compensation in addition to the amount already awarded to him by the Tribunal. 1) Pain and suffering :Rs.5,000/-(20,000 – 15,000) 2)Loss of earnings :Rs. 7,500/-(2000x6 – 4500) 3)Medical and miscellaneous expenses :Rs.7,500/-(Rs.27,500 – 20,000) 3)Reduction in earning Capacity :Rs.25,200/- (2000x12x18x20/100=86,400 –61200) 4)Loss of amenities :Rs.25,000/- Total : Rs. 70,200/- 8. In the result, a)this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs. 70,200/- (Rupees seventy thousand two hundred only) in addition to the amount already awarded by the Tribunal. MACA 296/2005 6 c)We direct that interest shall be payable on the entire amount of compensation at the rate and for the period as directed by the Tribunal in the impugned award. d)All other direction of the Tribunal are upheld. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY P.S. TO JUDGE MACA 296/2005 7 R. BASANT & M.C. HARI RANI,JJ ============================== C.M.APPLICATION NO. 1914 OF 2011 & M.A.C.A. NO. 1260 OF 2011 ============================ Dated this the 8th day of August 2011 ORDER R.Basant, J. This petition is to condone the delay of 120 days in filing an appeal. We have heard the learned counsel for the appellant. We are proceeding to dispose of the appeal on merits straight away. We are satisfied that the delay can hence be condoned without waiting for issue and return of notice to the respondents. Petition allowed. Delay condoned. R.BASANT, JUDGE M.C. HARI RANI,JUDGE ks. MACA 296/2005 8 R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 296 OF 2005 ============================ Dated this the 11th day of August 2011 JUDGMENT R.Basant, J. R. BASANT & M.C. HARI RANI,JJ ============================== C.M.APPLICATION NO. 1914 OF 2011 & M.A.C.A. NO. 1260 OF 2011 ============================ Dated this the 8th day of August 2011 ORDER R.Basant, J. This petition is to condone the delay of 120 days in filing an appeal. We have heard the learned counsel for the appellant. We are proceeding to dispose of the appeal on merits straight away. We are satisfied that the delay can hence be condoned without waiting for issue and return of notice to the MACA 296/2005 9 respondents. Petition allowed. Delay condoned. R.BASANT, JUDGE M.C. HARI RANI,JUDGE ks. MACA 296/2005 10 R. BASANT & M.C. HARI RANI,JJ ============================== C.M.APPLICATION NO. 2791 OF 2009 & M.A.C.A. NO. 2361 OF 2009 ============================ Dated this the 4th day of August 2011 ORDER R.Basant, J. This petition is to condone the delay of 248 days in filing the M.A.C.A. We have heard both counsel. We take a lenient view. Petition is allowed. Delay is condoned. R.BASANT, JUDGE MACA 296/2005 11 M.C. HARI RANI,JUDGE ks. MACA 296/2005 12 Claimant is the appellant. He claimed compensation for personal injuris suffered by him as a result of a motor accident which took place on 22/1/1996. Against a claim for Rs.2,00,000/-, the Tribunal awarded only an amaount of rs.1,01,700/- as per the details given below: 1) Pain and suffering :Rs.15,000/- 2)Loss of earning :Rs.4500 (3x1500) 3)ransport to hospital :Rs.1,000/- 4)Medical and miscellaneous expenses :Rs.20,000/- 5)Reduction in earning capacity:Rs.61,200(1500x12x17x20/100) Total :Rs.1,01,700/- The learned counsel for the appellant contends that the amount awr ded ar e grosslsy sinadequate considering the nature of the injuries and its consequences. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that th quantum of monthly income reckoned by the Tribunal (1500/- per mensem) is grossly and perversely low. The appellant was driving a jeep at the time MACA 296/2005 13 of the accident. He was a qualified driver. He was aged only 24 years. He had claimed that his monthly income of Rs.2500/-. The Tribunal only reckoned Rs.1500/- is the monthly income. The Tribunal ought to have noted that even for a non-earning person as early as sins 1994 the Legislature has permitted a presumption of prudence that such persons also must hae been earning Rs.1250/- for a skilled driver like the petitioner in 1996 certainly ahigher amount ought to have been acceptd as monthly income, submits the learned counsel. We agre with the learned counsel. We are satisfied that Rs.2,000/- can safely be acceptd as monthly income. It is next contended that the comcpensation awarded under the head of floss of earning iss inadequate. The appellant had sufferd fracture of the neck of femur right hip, tibial plato fracture with ligamentus injury to the right knee. He was an inpatient in different spells and the court below has snoted from the r ecords that he had continued to be under treatment from 23/1/1996 to 21/8/1996. Compensation for loss of earnings must have been granted at least for this period of seven months has MACA 296/2005 14 gone out by Exts.A2/A8, contends counsel. Learned counsel for the appellant is unable to furnish to us the precise dates of hospitalization Suffice it to say, we have evidence to show that the treatment had continued for a period of seven days. IN the absence of specific information about the dates of hospitalization, we find it absolutely stated in the circumstances assumed that the appellnt must have been involvuntarily unemployed for a period of six monthss as a result of the accident. Learned counsel for the appellant then contends relying on Ext.A10 certificate that the Tribunal has erred in not awar ding any compensation for future expenses. That certificate issued by the Doctor indicates that hip fracture suffered by the appellant had led to a vasculalr necrocis MACA 296/2005 15 R. BASANT & M.C. HARI RANI,JJ ============================== C.M.APPLICATION NO. 2791 OF 2009 & M.A.C.A. NO. 2361 OF 2009 ============================ Dated this the 4th day of August 2011 ORDER R.Basant, J. This petition is to condone the delay of 248 days in filing the M.A.C.A. We have heard both counsel. We take a lenient view. Petition is allowed. Delay is condoned. R.BASANT, JUDGE M.C. HARI RANI,JUDGE ks.