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. 1315 of 2005() ----------------------------------- OPMV.1703/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): PETITIONER: ------------------------------------------ SIVAKUMAR P., AGED 21 YEARS, S/O. LATE SULOCHANAN NAIR, KULAPPURA VEEDU, ERAMANGALAM, NOCHULLI, P.O. KUZHALMANNAM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. N. PARVATHI KOVILAMMA, AGE NOT KNOWN, W/O. MR.V.G.B.ERADI, ERADI BHAVAN, VAZHAYUR EAST P.O., MALAPPURAM DIST. (OWNER OF JEEP KL-10/E-9189). 2. BHAGYANATH, S/O. BHAGYACHANDRAN, AGED NOT KNOWN, ERADI BHAVAN, VAZHAYUR EAST P.O., MALAPPURAM DIST. (DRIVER OF JEEP KL-10/E-9189). 3. ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE P.B.NO.3, JASEELA COMPLEX, BYEPASS JUNCTION, NILAMBUR ROAD, MANJERI, POLICY NO.3434. (INSURER OF JEEP). 4. K.M. JANARDHAN, S/O. KUTTAN NAIR, KOUSTHUBHAM, PALLAVOOR P.O., PALAKKAD DIST. (OWNER OF KL-9/B-9016 SCOOTER). tss M.A.C.A. NO.1315/2005 5. ACHUTHAPRAKASH, AGED 25 YEARS, S/O. JANARDHAN, KOUSTHUBHAM, PALLAVOOR P.O., PALAKKAD DIST. (RIDER OF SCOOTER KL-9/B-9016). 6. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, NEMMARA. (INSURER OF SCOOTER CERTIFICATE NO.257297). R1 & R2 BY ADVS. SRI.V.V.SURENDRAN, SRI.P.A.HARISH. R3 BY ADV. SRI. GEORGE CHERIAN (THIRUVALLA) R6 BY ADV. SRI.S.ARUN RAJ. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss R.BASANT & N.K.BALAKRISHNAN, JJ =============================== MACA No.1315 of 2005 ================================ Dated this the 7th day of July, 2011 JUDGMENT Basant, J. Claimant is the appellant. On 28.6.1997, at the age of 21 years, he suffered injuries in a road traffic accident. He was at that time employed as a Sales Representative under training. He was selected as police constable in the Kerala Police. He suffered multiple injuries including fractures. He was unconscious when he was admitted to the hospital. He was treated as an inpatient from 28.6.1997 to 28.7.1997. Thereafter he continued treatment. He suffered permanent physical disability. Vision of the right eye was completely lost. He claimed a total amount of Rs.8,12,500/- as compensation. The claim was resisted. The Tribunal, by the impugned award, directed payment of an amount of Rs.1,81,150/- along with interest at the rate of 6% per annum and costs. 2. The amount of Rs.1,81,150/- was awarded under the following heads: MACA 1315/2005 -:2:- 1. Loss of earning @ 3000 for 6 months -Rs.18,000/- 2. Transport to hospital - Rs.3,500/- 3. Extra nourishment - Rs.3,500/- 4. Expenses for by-stander/attendant - Rs.2,000/- 5. Damage to clothing - Rs.250/- 6. Medical expenses - Rs.7,000/- 7. Expenses for future treatment - Rs.2,500/- 8. Pain and suffering - Rs.15,000/- 9.Continuation compensation for - Rs.1,22,400/- reduction in earning capacity i.e.(3000 x 12 x 17x20/100) 10. Compensation for loss of amenities disfiguration and diminution of - Rs.7,000/- marriage prospects Total - Rs.1,81,150/- 3. We have heard learned counsel for the claimant and the learned counsel for the insurance company. The learned counsel for the claimant assails the impugned award on the ground that the quantum of compensation awarded is very low. The claimant/appellant, a young man, aged 21 years, contends that as a result of the injuries sustained in the accident, the MACA 1315/2005 -:3:- right portion of his body has become completely paralysed and that he had to obtain the assistance of a third person for all his basic necessities. All his hopes about his life and career have been frustrated. The Tribunal has not realistically computed the compensation. 4. Called upon to explain the challenge under different heads, learned counsel for the appellant contends that the Tribunal had erred grossly in reckoning the earning at Rs.3,000/- per mensem. He had only commenced his career. Ext.A13 shows that he had been selected as a trainee professional sales representative on probation only on 5.3.1997. The accident occurred on 28.6.1997. According to him, his monthly earnings at that time from such employment was Rs.5,000/-. He did not intend to take up that as a permanent career. He had applied for recruitment to the post of police constable in the Kerala Police Department. He was selected and advise memo was received from the appointing authority. He should have appeared for a fitness test. As a result of the injuries sustained in the accident, the appellant could not attend the medical test for securing employment in the police department. He had prospects for promotion in the MACA 1315/2005 -:4:- police department and all those opportunities have been lost. The Tribunal did not even reckon Rs.5,000/- as his monthly income and going by Ext.A13, the Tribunal felt that only Rs.3,000/- can be reckoned as the monthly income. The first challenge is on that ground. 5. The monthly income becomes relevant in two contexts. First of all we have to ascertain the loss of earnings for a period of six months. That relates to his actual income during the period of treatment and recovery. We are not persuaded to agree with the said figure. Rs.18,000/-(6x 3000/-) calls for interference. The claimant was selected for appointment to the police force and the injuries sustained in the accident had put an end to such aspirations of the appellant. The income which he was drawing at the time of the accident cannot therefore be adopted blindly as the multiplicand. The prospects of future employment will have to be taken into consideration. Taking the totality of circumstances into consideration and considering the young age of 21 years; the fact that he had secured better employment recently from which he claims Rs.5,000/- per mensem though the Tribunal accepted only Rs.3,000/-and the fact that he had been recruited to the police MACA 1315/2005 -:5:- force, we are of the opinion that it would only be realistic and reasonable to adopt the amount of Rs.5,000/- as the multiplicand while computing the compensation for loss of earning capacity in future. 6. The next contention is regarding the percentage of reduction in earning capacity. We have been taken through Ext.A6 report of the medical board. That shows that the appellant/claimant had Opthalmological disability, which was permanent in nature and the Medical Board assessed the disability at 45%. The Tribunal also relies on the argument note submitted by the counsel for the insurance company where we find that 32%(100-68) can be reckoned as the disability. The Tribunal, according to us, reasonably felt that it would be safer to fall back on the Schedule to the Workmen's Compensation Act. 7. We have been taken through the oral evidence of PW2, she is one of the Doctors, who signed Ext.A6. She stated that his right vision is completely lost. There is nothing to show that the eye ball had suffered any complication or disfiguration. In the circumstances, we are of the opinion that Entry 26 of Part II of Schedule I of the Workmen's Compensation Act can MACA 1315/2005 -:6:- safely be accepted in the absence of better evidence to ascertain the percentage of reduction in the earning capacity. While ascertaining the quantum of compensation payable for loss of earning capacity what we have to ascertain is the reduction in earning capacity. So reckoned, we conclude that Entry 26 referred above can be followed safely and 30% can be accepted as the percentage reduction in earning capacity. 8. Learned counsel for the appellant points out that the appellant had to endure misery while he underwent treatment in the hospital and for a long period thereafter while he was recovering from the injuries. He was brought to the hospital unconscious. He was classified as dangerously ill, as is seen from the case sheet. Temporal craniectomy and evacuation of burst temporal lobe was done. Emergency neurosurgery consultation was done with CT. All these can certainly give the court an idea about pain and suffering endured by the appellant while undergoing treatment and thereafter. Only an amount of Rs.15,000/- has been awarded under the head 'pain and suffering'. An amount of Rs.25,000/- should have been awarded under that head, we feel. 9. Notwithstanding our finding on the extent of reduction MACA 1315/2005 -:7:- in earning capacity Ext.A6 suggests that physical disability was assessed by the team of Doctors at 45%. Physical disability suffered has two-fold reflections on a man's life. It may reduce the earning capacity. It will also have a bearing on the quality of enjoyment of life of a person. Vision in the right eye was completely lost. In addition to the compensation for reduction in the earning capacity, the appellant is certainly entitled for compensation for impairment in the quality of life and the loss of enjoyment which he must inevitably have suffered. Learned counsel for the appellant submits that the amount awarded under the head of 'loss of amenities and enjoyment in life' is too low and the compensation awarded for disfiguration and loss of marriage prospects, etc. have also to be taken into consideration. He also submits that the award of Rs.7,000/- as a global amount under all these heads put together is also too low. The amount of compensation awarded under that head hence deserves to be enhanced. We find force in the submission. An amount of Rs.25,000/- can certainly be granted as compensation for loss of amenities and enjoyment in life in addition to the compensation awarded under the head of reduction in earning capacity. MACA 1315/2005 -:8:- 10. On the basis of the above discussions, we come to the conclusion that the claimant is entitled to the following further amount of compensation in addition to the amount awarded by the Tribunal. (1) Reduction in earning capacity, (i.e.Rs.5,000x12x17x30/100,i.e. Rs.3,06,000 -1,22,400) =Rs.1,83,600/-. (2)Pain and suffering =Rs.10,000/- (i.e.Rs.25,000-15,000) (3)Loss of amenities, etc. =Rs.18,000/- (i.e.25,000-7,000) Total =Rs.2,11,600/- 11.The counsel argued that the interest awarded is only at the rate of 6% per annum and that is unrealistic. We are satisfied that the said contention can be accepted and interest can be ordered to be paid on the entire amount of compensation at the rate of 7.5% per annum. 12.The appeal succeeds to the above extent. 13.In the result, (a) this appeal is allowed in part. (b) the appellant is found entitled to receive from MACA 1315/2005 -:9:- the respondents a further amount of 2,11,600/- in addition to the amount awarded by the Tribunal. The entire amount of compensation shall be paid along with the interest at the rate of 7.5% per annum from the date of the claim to the date of payment. (c)all other directions issued by the Tribunal are upheld. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE Cdp/-