IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 MACA.No. 1627 of 2011 ----------------------- OPMV.684/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT : PETITIONER IN OPMV -------------------------------- SOMAN, S/O.BALAKRISHNAN, AGED 51 YEARS, KONIKKOTH HOUSE, AVIDANALLOR.P.O., VIA NADUVANNOOR, KOYILANDY TALUK, KOZHKIKODE DISTRICT. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENTS : RESPONDENTS IN OPMV --------------------------------- 1. HYDER HARIS, S/O. MAMMIKUTTY HAJI, THARAKKAL HOUSE, PAINKANNUIR, P.O.,KUTTIPPURAK, MALAPPURAM. 2. MOHAMMED ASHARAF.K., S/O. KUNHI KMOHAMMED AGED 41 YEARS, KALPHATTIL HOUSE, PAINKANNUR.P.O., MALAPPAURAM. 3. THE NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE NOOR COMPLEX, NEAR ARAYIDATHUPALAM, CALICUT. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** M.A.C.A No.1627 of 2011 ***************************** Dated this the 28th day of October, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 05.12.2007. He had suffered multiple injuries including fracture of the right humerus. He was an inpatient for a period of about 5 days. Against a total claim of Rs.2 lakhs, the Tribunal awarded a total amount of Rs.70,400/- as per the details given in para.11 of the impugned award, which we extract below: Sl.No. Head of claim Amount awarded 1 Loss of earning (Total) Rs. 9,000.00 (3,000X3) 2 Medical and miscellaneous expenses Rs.31,150.00 (acceptable bills for Rs.31,146.94 produced) 3 Bystander expenses Rs. 1,000.00 (200X5days) 4 Transportation expenses Rs. 1,000.00 5 Extra nourishment Rs. 3,000.00 6 Damage to clothing Rs. 250.00 7 Pain and suffering Rs.15,000.00 8 Loss of amenities Rs.10,000.00 Total Rs.70,400/- The insurance company was made entirely liable to satisfy the award. M.A.C.A No.1627 of 2011 2 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised against the quantum of compensation only. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the quantum of compensation awarded primarily on two grounds. No compensation has been awarded for reduction in earning capacity. The amount of compensation awarded under the head of pain and suffering (15,000) is inadequate. These are the only two contentions raised. Considering the nature of injuries and the period of treatment, we are satisfied that the compensation of Rs.15,000/- awarded under the head of pain and suffering does not warrant interference. We do further note that under the head of loss of amenities, a further amount of Rs.10,000/- has also been granted. Coming to the criticism that no compensation has been awarded under the head of loss of earning capacity, we find the challenge to be justified. The Tribunal had forwarded the claimant/appellant to the Medical Board at the Medical College Hospital, Calicut. The Medical Board had examined the appellant and certified that he suffers 15% physical disability. The extent of occupational disability is not specified. Nature of M.A.C.A No.1627 of 2011 3 disability is specified and it is stated that the appellant had united supra condular fracture of the right elbow. The implants were in situ. The range of movement of the right elbow is restricted, it is reported. It is with these data that the conclusion is reached that there is physical disability of 15%. It is true that further details are not given. The occupational disability is not specified. None of the members of the Medical Board were examined before the Tribunal also. The Tribunal, in these circumstances, came to the conclusion that no amount is payable under the head of reduction in earning capacity. 4. The learned counsel for the appellant argues and we agree that the approach made by the Tribunal is not just and proper. If the reports submitted to the Tribunal by the Medical Board after the examination of the appellant, who was referred to the medical Board by the Tribunal, was not satisfactory or deficient in any particular, certainly the appellant must have been referred back to the Medical Board and the court should have insisted on further examination of the appellant. That having not been done, the omnibus rejection of the claim for compensation under the head of reduction in earning capacity does not appear to us to be just, fair and proper. It is true that M.A.C.A No.1627 of 2011 4 precise reduction in earning capacity is not attempted to ascertain by the Medical Board in Ext.C1 report submitted by it. All the same, the Tribunal should not have thrown its hands up in helplessness. The appellant is shown to be an Agriculturalist. 15% permanent physical disability is shown to have resulted. The Tribunal must, at any rate, have awarded the minimum amount of compensation which represents the loss suffered by the appellant on account of the physical disability and the consequent reduction in earning capacity. Taking all the relevant circumstances into account, we are satisfied that 12% can safely be fixed as the extent consequent to the permanent physical disability certified in Ext.C1. Rs.3,000/- can safely be reckoned as the monthly income of the appellant on the date of the accident. Considering his age (47 years), 13 can be accepted as the multiplier as indicated in the Second Schedule to the Motor Vehicles Act. 5. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.56,160/- as compensation as shown below in addition to the amount already awarded by the Tribunal under the impugned award. M.A.C.A No.1627 of 2011 5 i) Compensation for reduction in earning capacity (no amount awarded by the Tribunal) :Rs.56,160.00 (3000X12X13X12/100) 6. We are not persuaded to agree that the amount awarded under any other head requires or warrants interference. 7. Only an amount of Rs.1,000/- has been awarded as cost. Counsel argues and we agree that proportionate cost for the entire amount of compensation in the proceedings before the Tribunal as calculated in Jeena V. Satheesh Babu.K [2011(3) KLT 943] is liable to be awarded. 8. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.56,160/- (Rupees Fifty six thousand one hundred and sixty only) in addition to the amount already awarded by the Tribunal under the impugned award; 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; M.A.C.A No.1627 of 2011 6 d) Proportionate cost in the proceedings before the Tribunal on the entire amount of compensation be paid to the claimant as held in Jeena (supra); e) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/