IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 MACA.No. 1674 of 2011() --------------------------------- O.P. (MV) NO.2287/03 ON THE FILE OF THE MACT, PERUMBAVOOR. APPELLANT(S): -------------- ALEX SEBASTIAN, AGED 45 YEARS, S/O. DEVASSY, KARUMATHY PUTHEN VEETTIL, THURUTHYSSERY, MECKAD P.O. BY ADV. SRI.K.SUNILKUMAR RESPONDENT(S): --------------- 1. ACHUTHASWAMI, S/O. KURUPPUSWAMI, VATTAPPARA HOUSE, NEAR WALAYAR DAM, PALAKKAD DISTRICT-678 001. 2. K. MANI, S/O. KANDASWAMI GOUNDER, 2/55-A, MODHAMATHI THOTTAM, MAVUTHAMPATHI, COIMBATORE-641 105. 3. NATIONAL INSURANCE CO. LTD., CITY BRANCH III, 1152-1153, TRICHY ROAD, RAMANATHAPURAM POST, COIMBATORE-641 045. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- M.A.C.A. No. 1674 of 2011 ------------------------------------------------- Dated this the 9th day of November, 2011 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 6/6/2003. He was allegedly earning an amount of `6,000/- per mensem from his avocation as a driver. He had suffered multiple injuries including fracture of left tibia, fracture of tibial candyle right and fracture of 2nd and 3rd metacarpal right. C.T. Scan of the head was taken and that revealed head injury. There was left frontal small haemorrhagic contusion and diffused oedema. He continued as an inpatient from 6/6/03 to 19/7/03. He had allegedly suffered physical disability. The extent of physical disability was assessed by a Medical Board which certified the extent of total physical disability to be 41.5%. One doctor on the Medical Board was examined as P.W.1. 2. The Tribunal, against a total claim limited to `5,00,000/-, awarded a total amount of `4,56,510/- as compensation as per the M.A.C.A. No. 1674 of 2011 -: 2 :- details given in paragraph-13 of the impugned award which we extract below: Sl.No. Head of claim Amount awarded (in Rs.) Basis - vital details in a nutshell 1 Loss of earnings 15,000/- 2500 x 6 months 2 Partial loss of earnings Nil 3 Transport to hospital 1,200/- 4 Extra-nourishment 3,000/- 5 Damage to clothing etc. 200/- 6 Medical expenses 1,59,910/- Actual medical bills 7 Future medical expenses Nil 8 Nursing and by-stander 3,000/- Rs.100 x 30 days 9 Pain and suffering 30,000/- 6 fractures IP 30 days 10 Loss of amenities etc. 20,000/- 11 Disability 2,24,100/- (3000 x 12 x 15 x 41.5/100) 12 Loss of earning power Nil Total Limited to Rs.5,00,000/- 4,56,410/- Rs.4,56,410 along with interest @ 8% p.a. The insurance company was made entirely liable to pay the compensation. 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The learned counsel for the appellant assails the impugned award on the sole ground that the quantum of compensation is not adequate. 4. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the monthly M.A.C.A. No. 1674 of 2011 -: 3 :- income of the appellant reckoned by the Tribunal at `2,500/- is totally inadequate. Relying on Clause (6) of the Second Schedule of the Motor Vehicles Act and the dictum in Laxmi Devi v. Mohammad Tabbar (2008 ACJ 1488), it is contended that the Tribunal ought to have reckoned, at least, `3,000/- as monthly income of the appellant. We agree with the learned counsel for the appellant. It is not contended that the Tribunal did not reckon the multiplier correctly. The appellant belongs to the age group 35 to 40 years and going by the Second Schedule of the M.V. Act, multiplier in the case of permanent disablement is '16'. It is further submitted that taking into account the possibility of future improvement of prospects in employment, appropriately higher multiplicand ought to have been taken by the Tribunal. We agree with the learned counsel for the appellant. We are satisfied that `3,250/- can be accepted as the multiplier while ascertaining the compensation for reduction in earning capacity. 5. No other contentions are raised. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `37,860/- (Rupees thirty seven thousand eight hundred and sixty only) as compensation as per the details shown below in addition to the amount already awarded by the Tribunal: M.A.C.A. No. 1674 of 2011 -: 4 :- 1. Loss of earnings (`3,000/- x 6 = `18,000/- minus `15,000/-) - `3,000/- 2. Reduction in earnings capacity (`3,250/- x 12 x 16 x 41.5/100 = `2,58,960/- minus `2,24,100/-) - `34,860/- ------------- Total - `37,860/- ====== 7. The learned counsel for the appellant submits that the Tribunal has erred in not awarding the proportionate cost. We agree. The appellant shall be entitled to proportionate cost on the entire amount of compensation in the proceedings before the Tribunal as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). 8. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `37,860/- (Rupees thirty seven thousand eight hundred and sixty only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal in the impugned award. (d) We direct that proportionate cost in the proceedings before the Tribunal on the entire amount of compensation be paid M.A.C.A. No. 1674 of 2011 -: 5 :- to the claimant/appellant as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). Sd/- R. BASANT (Judge) Sd/- V. CHITAMBARESH (Judge) Nan/ //true copy// P.S. to Judge M.A.C.A. No. 1674 of 2011 -: 6 :- R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- C.M. Appl. No.2534 of 2011 in M.A.C.A. No. 1674 of 2011 ------------------------------------------------- Dated this the 9th day of November, 2011 ORDER This petition is to condone the delay of 116 days in filing the M.A.C.A. Heard the learned counsel for the appellant and the learned counsel for the insurance company which has been made entirely liable under the impugned award to satisfy the award. We take a lenient view. Petition allowed. Delay condoned. R. BASANT (Judge) V. CHITAMBARESH (Judge) Nan/