IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 MACA.No. 991 of 2006() ---------------------------- OPMV.1357/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: ------------------------------- SUDHEESH KUMAR, S/O. SREEDHARAN, AGED 30 YEARS, THANDAPARAMB, KUNIYIL VEEDU, THRIPRANGETTUR AMSOM, P.O. KADAVATHUR. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): RESPONDENTS IN OP(MV): ----------------------------------------------------- * 1. A.S. DEVAN, S/O. SANKARAN, PUTHALATH HOUSE, THRIPRANGOTTUR AMSOM, KADAVATHUR DESOM, P.O. KADAVATHUR. (DELETED) 2. UNITED INDIA INSURANCE COMPANY LTD., JUBILEE COMPLEX, THALASSERY. * RESPONDENT NO. 1 IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE APPELLANT VIDE SEPARATE ORDER DATED 11/07/11 IN I.A. NO.1757/2011 IN M.A.C.A. NO.991/2006. R2 BY ADV. SRI.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- C.M.Appl.No.1074 of 2006 and M.A.C.A.No.991 of 2006 ---------------------------------------------------- Dated this the 13th day of July, 2011 Order/Judgment Basant, J. C.M.Appl.No.1074 of 2006 This petition is to condone the delay of 278 days in filing the appeal. We take a lenient view. Petition allowed and the delay is condoned. M.A.C.A.No.991 of 2006 Claimant is the appellant. He claimed compensation for personal injuries suffered in a motor vehicles accident which took place on 15.1.1999. Against a claim for Rs.1,50,000/-, the Tribunal awarded an amount of Rs.46,000/- as compensation. The compensation was awarded under the following heads: 1. Loss of earning(2000x3) - Rs.6,000/- 2. Transportation expenses - Rs.500/- 3. Medical expenses - Rs.2,848/- 4. Extra-nourishment - Rs.11,500/- C.M.Appl.1074/06 & MACA 991/06 2 5. Bystander's expenses - Rs.2,200/- 6. Pain and suffering - Rs.5,000/- 7. Future medical expenses - Rs.3,000/- 8. Loss of earning capacity - Rs.24,480/- (2000 x 12 x 17 x 6%) -------------- Total - Rs.45,528/- Rounded to - Rs.46,000/- ======== The learned counsel for the appellant and the learned counsel for the insurance company have advanced their arguments. The challenge is only against the quantum of compensation payable. Called upon to explain the challenge, the learned counsel for the appellant submits that the monthly income reckoned as Rs.2000/- for the appellant, a construction worker, aged 24 years, is grossly inadequate. Considering the injury and the proved mal-union of the fractured bone, the period of involuntary unemployment reckoned as three months is also grossly inadequate. We agree that Rs.3000/- must have been reckoned as the monthly earnings. We further agree that that there must have been involuntary unemployment for a period of five months. C.M.Appl.1074/06 & MACA 991/06 3 2. Learned counsel then contends that the Tribunal has awarded only an amount of Rs.5000/- as compensation for pain and suffering. He has suffered fracture of the right femur. He was in the hospital for 22 days. Plaster cast had to be applied. Considering the totality of the circumstances, a higher amount of compensation must have been awarded under the head of pain and suffering. We agree that an amount of Rs.15,000/- should have been awarded under this head. 3. Learned counsel then contends that the Tribunal erred grossly in reckoning the extent of physical disability at 6%. Even assuming that the physical disability is only 6%, the Tribunal should have noted that the disability and the evidence of doctors do establish satisfactorily that the physical competence and efficiency of the appellant is adversely affected by the accident. Considering his employment as a construction worker, it must have been held that the extent of physical disability cannot be equated to the reduction in earning capacity. A higher extent of reduction in earning capacity must certainly have been reckoned by the Tribunal, contends the counsel. We agree, considering the totality of circumstances including the nature of disability and the C.M.Appl.1074/06 & MACA 991/06 4 nature of employment of the claimant that 10% must have been reckoned as the reduction in earning capacity. 4. Learned counsel further submits that the Tribunal unrealistically did not award any amount under the head of loss of amenities. The physical disability suffered by the young appellant aged 24 years has manifold reflections in the quality of life which the appellant can aspire to enjoy. In addition to the amounts awarded under the head of reduction in earning capacity, further amounts must certainly have been awarded considering the impairment and quality of life consequent to the disability suffered. We agree and held that an amount of Rs.25,000/- should have been awarded as compensation for loss of amenities. 5. We have considered all the relevant aspects and inputs. We are of the opinion that the challenge against the impugned award is justified. We take the view that the appellant is entitled for the following further amounts in addition to the amounts already awarded by the Tribunal as per the details shown below: 1. Loss of earnings (Rs.3000x 5 months minus 6000) - Rs.9,000/- C.M.Appl.1074/06 & MACA 991/06 5 2. Pain and suffering (15,000 minus 5000) - Rs.10,000/- 3. Loss of earning capacity (3000 x 12 x 17 x 10/100 minus 24,480) - Rs.36,720/- 4. Loss of amenities - Rs.25,000/- ---------------- Total - Rs.80,720/- ========== 6. In the result: a) The appeal is allowed in part. b) The appellant is found entitled to receive a further amount of Rs.80,720/- in addition to the amounts already awarded by the Tribunal. c) Interest shall be payable as directed by the Tribunal on the entire amount of compensation. d) All other directions of the Tribunal are upheld. R.BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd C.M.Appl.1074/06 & MACA 991/06 6