IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 MACA.No. 57 of 2009 --------------------- OPMV.1447/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: PETITIONER ------------------------ YATHEENDRADAS @ CHANDU, S/O. MALIAKKAL NARAYANAN, KAVIL, KODAKARA, THRISSUR DISTRICT. BY ADV. SRI.P.K.RAVISANKAR RESPONDENTS: RESPONDENTS -------------------------- 1. HENRY JOSEPH, S/O. PUTHENVEETIL INASU, PUDUKKAD, VIYOOR, THRISSUR DISTRICT. 2. BABU, S/O. KOTTARAKUNNIL MARKOSE, KARANCHIRA, KIZHAKKUMCHERI, PALGHAT DISTRICT. 3. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, PERINCHERY BUILDING, BRANCH, THRISSUR. 4. M.D NARAYANAN, S/O. MALIAKKAL DAMODARAN NAIR, KAVIL, KODAKARA.P.O, THRISSUR DISTRICT. 5. SIVADAS, PATTATHIL UNNIKRISHNAN NAIR, VASUPURAM, MATTATHURKUNNU, KODAKARA. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 57 OF 2009 ============================ Dated this the 3rd day of August 2011 JUDGMENT R.Basant, J. The claimant is the appellant. He, an 18 year old engineering student at the time of the accident on 24/8/2002, claimed compensation for personal injuries suffered by him in that accident. He had suffered grievous head injury - compound depressed fracture frontal bone with pneumocephalus, nasal bone fracture, fracture ethnoid bone, bennet's fracture right hand etc. He was an inpatient for a total period of 25 days. He had suffered loss of smell as a result of the accident. He had continued treatment as an outpatient for a long period of time. He had undergone brain surgery. Against the claim of Rs.3,18,000/-, the Tribunal awarded the total amount of Rs.1,48,000/-- as compensation as per the details shown below. M.A.C.A. 57/2009 2 Sl.No. Head under which claim made amount awarded 1 Transport to hospital and other conveyance charges 1000 2 Bystander expenses 2500 3 Treatment expenses 94900 4 compensation for pain and sufferings 25000 5 compensation for loss of amenities, loss of memory and loss of smell 25000 Total 1,48,000 2. The challenge is directed only against the quantum of compensation payable. Called upon to explain the nature of the challenge and be precise, the learned counsel for the appellant contends that the Tribunal had accepted physical disability, but did not accept the quantification of the physical disability at 30% by PW2, who issued Ext.A5 certificate. The opinion of PW2 is founded on the fact that the appellant had lost his sense of smell. On account of that, as also on account of serious injuries which he had suffered which expose the appellant to the risk of epilepsy, the physical disability was assessed at 30%. The Doctor, PW2 had taken note of the fact that he had undergone two major brain surgeries on account of the head injury suffered. The learned counsel for the appellant contends that for the physical disability suffered, M.A.C.A. 57/2009 3 compensation must have been awarded for reduction in earning capacity. It is further contended that the Tribunal has not awarded a reasonable amount under the head of loss of amenities and the loss of memory/loss of smell. Only an amount of Rs.25,000/- has been awarded under that head. The appellant, an 18 year old person, will have to live with such disability for the rest of his life. The compensation for loss of amenities resulting from the physical disability has not been awarded fairly and justly, contends the counsel. 3. The injury suffered has resulted in retardation of the educational career of the appellant. He has lost one college year, it is submitted. No specific evidence in support of that assertion is produced. It is further pointed out that there has been shortened expectation of life. The accident, the injury and consequent disability have impaired the marriage prospects of the appellant. Loss of smell may in turn have a reflection on his earning capacity also, it is submitted, though at the moment it cannot be specifically said that such disability would lead to immediate reduction in earning capacity. 4. We have considered all the relevant inputs. The Doctor, PW2 in Ext.A5 was opined that the permanent disability suffered is 30%. For the sake of arguments, we will accept that, but at any rate, it cannot be assumed M.A.C.A. 57/2009 4 that compensation for reduction in earning capacity by employing multiplier multiplicand method has to be ascertained for such alleged physical disability of 30%. The disability suffered, as stated earlier, mainly is the loss of the sense of smell. We are satisfied that an appropriately higher amount of compensation can be awarded under the head of loss of amenities and it is not necessary or possible to come to a specific finding that reduction in earning capacity has resulted on account of the accident. We say so because no other permanent disability is indicated and it is not even suggested that the appellant, by his training and inclination, is likely to take up any employment where the loss of the sense of smell may have an impact on his earning capacity. 5. We shall now attempt to ascertain the appropriate amount payable under the composite head of loss of amenities, loss of memory and loss of smell. The Tribunal awarded only an amount of Rs.25,000/-. In any view of the matter, we are satisfied, taking into consideration the nature of the disabilities and the period for which the life of the appellant would stand impaired by the disability suffered, that a total amount of Rs.60,000/- can be awarded under the composite head of loss of amenities, loss of memory and loss of smell. We are further satisfied that for the loss of educational prospects and marriage prospects, a further amount of Rs.40,000/- can be M.A.C.A. 57/2009 5 awarded. 6. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.75,000/-/-(60,000/- + 40,000/- minus 25,000/-) as compensation as per the above details. 7. In the result, a) this appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.75,000/- in addition to the amount already awarded by the Tribunal. c) We direct that interest be paid on the entire amount of compensation at the rate and for the period as specified by the Tribunal. d) All other directions of the Tribunal are upheld. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks.