IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 MACA.No. 1588 of 2011() ----------------------- OPMV.1009/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): PETITIONER ------------------------ CHIRAYIL VASU, S/O.CHOZHIKUTTY, CHIRAYIL HOUSE, PARAPPUR, IRINGALLOOR AMSOM DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON SRI.V.S.HARIKRISHANAN(VAZHUTHACAUD) RESPONDENT(S): RESPONDENTS -------------------------- 1. P.KADERKUTTY, S/O.MOIDEEN, PARAMBIL HOUSE, P.O.VENGARA, MALAPPURAM DISTRICT, PIN-676304. 2. C.VIJAYAN, S/O.CHOYIKUTTY, CHERAYIL HOUSE, IRINGALLOOR, P.O.VENGARAM MALAPPURAM DISTRICT, PIN-676304. 3. UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, COURT ROAD, P.O.MANJERI, MALAPPURAM-676121. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- M.A.C.A. No.1588 of 2011 ------------------------------------------------- Dated this the 31st day of October, 2011 JUDGMENT Basant,J. The claimant is the appellant. He, a 37 year old manual worker, claimed compensation for personal injuries suffered by him in a motor accident which took place on 11/5/2007. According to him, he was earning a monthly income of `6,000/-. He had suffered major injuries including compression fracture of T12 vertebra with vetro-listhesis. He was an inpatient for a period of 24 days. He had allegedly suffered permanent partial disability. He was sent to the Medical Board by the court and as per Ext.X1, his permanent physical disability was assessed to be 60%. He suffered paraplegia as a result of the accident. He was confined to his wheel chair and was dependent on Foley's Catheter. The Tribunal against a total claim of `10,00,000/-, awarded an amount of `5,62,906/- as compensation as per the details given in the summary of compensation which we extract below: M.A.C.A. No.1588 of 2011 -: 2 :- Sl. No. Head under which compensation is claimed Amount awarded Basis on which allowed/disallowed with reasons in a nut shell 1 Loss of earnings 42,000/- 1 year 2 Partial loss of earning .. .. 3 Future treatment .. .. 4 Medical expenses 90,256/- Ext.A5 series 5 Bystander's expenses 2,400/ 24 days 6 Damage to clothing 250/- Nominal amount 7 Transportation 10,000/- particularly relaying on Ext.A6 series 8 Extra nourishment .. .. 9 Pain and suffering 25,000/- spinal injuries with paraplegia 10 Loss of love and affection .. .. 11 Loss of consortium .. .. 12 Loss of estate .. .. 13 Loss of dependency/ economic benefits .. .. 14 Loss of amenity and convenience 15,000/- Bladder incontinence, wheel chair ambulant 15 Loss of earning power 3,78,000/- 60% permanent partial disability 16 Any other heads (Disability) .. .. Total 5,62,906/- 9% p.a. interest on award amount from date of petition 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The insurance company has been made entirely liable under the impugned award to satisfy the award. M.A.C.A. No.1588 of 2011 -: 3 :- 3. Challenge is raised only on the ground that the quantum of compensation awarded is insufficient. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the monthly income of the appellant reckoned by the Tribunal at `3,500/- is not reasonable and just. He was actually earning an income of `6,000/- per mensem, it is contended. No data has been made available before Court to come to the conclusion that he was drawing any higher income. The Tribunal evidently, even in the absence of any specific evidence, drew inspiration from Clause (6) of the Second Schedule to the Motor Vehicles Act as also from the decisions in Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218) and Laxmi Devi v. Mohammad Tabbar (2008 ACJ 1488). We are unable to agree that, on the materials available, the Tribunal could have safely come to any better conclusion in favour of the appellant on the monthly income of the appellant. The challenge on that ground cannot succeed. 4. The learned counsel for the appellant next contends that only an amount of `2,400/- has been awarded under the head of by-stander's expenses. During the entire period of treatment and thereafter, the appellant, who, the Medical Board certifies, is now confined to his wheel chair, had to and will have M.A.C.A. No.1588 of 2011 -: 4 :- to depend on the service of a by-stander. In this view of the matter, the amount of compensation under the head of by- stander's expenses is not sufficient, contends counsel. We find force in the contention. 5. The learned counsel for the appellant next contends that under the head of loss of earning power only an amount of `3,78,000/- (3500 x 12 x 60 x 15) has been awarded as compensation. The learned counsel contends that going by the Second Schedule to the M.V. Act, for a person like the appellant who belongs to the age group of 35 to 40 years, '16' and not '15' should have been accepted as the multiplier. We agree with the learned counsel for the appellant. We note that under the Second Schedule which specifically deals with multiplier to be accepted in the case of permanent partial disability, 16 is the multiplier applicable to the persons of the age group of 35 to 40 years. 6. The learned counsel then argues that the Tribunal was unrealistic in assuming that 60% of physical disability could have reduced the earning capacity also only by identical accident. Such mechanical conclusion is not justified, contends counsel. The appellant was a manual labourer and reduction of 60% in physical ability would reduce the earning capacity not merely by 60%; but more. The learned counsel for the appellant submits M.A.C.A. No.1588 of 2011 -: 5 :- that virtually the appellant has suffered total reduction in earning capacity because of the disability considering his nature of employment. We find force in the submission. In the facts and circumstances of this case, we are satisfied that even assuming, in the absence of better evidence, that the appellant must be able to resort to some income earning activity, the extent of reduction in earning capacity can safely be reckoned as 75%. 7. Finally, the learned counsel contends that under the head of loss of amenities and convenience for the 37 year old appellant, only an amount of `15,000/- has been awarded. This is grossly insufficient. The appellant will have to live and endure the disability for the entire rest of his life. The quality of life which the appellant can aspire to enjoy is considerably reduced and impaired. An amount of `15,000/- awarded under the head of loss of amenities and convenience is not fair and reasonable compensation, contends counsel. We find force in the said submission also. 8. The learned counsel for the appellant points out that proportionate costs on the entire amount of compensation is liable to be awarded. The same has not been awarded. In the light of Jeena v. Satheesh Babu.K. (2011 (3) KLT 943), proportionate costs in the proceedings before the Tribunal on M.A.C.A. No.1588 of 2011 -: 6 :- the entire amount of compensation is liable to be awarded, contends counsel. We agree. 9. On the basis of the above discussions we come to the conclusion that the appellant is entitled to a further amount of `1,73,600/- (Rupees one lakh seventy three thousand and six hundred only) as compensation, as shown below, in addition to the amount already awarded by the Tribunl: 1. By-stander's expenses (`25,000/- minus `2,400/-) - `22,600/- 2. Reduction in earning capacity (3500 x 12 x 16 x 75/100 = `5,04,000/- minus `3,78,000/-) `1,26,000/- 3. Loss of amenities and convenience (`40,000/- minus `15,000/-) - `25,000/- --------------- Total - `1,73,600/- ======= 10. In the result: (a) This appeal is allowed in part. (b) The appellant is entitled to a further amount of `1,73,600/- (Rupees one lakh seventy three thousand and six hundred 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 M.A.C.A. No.1588 of 2011 -: 7 :- specified by the Tribunal in the impugned award. (d) We further direct that proportionate costs in the proceedings before the Tribunal on the entire amount of compensation awarded shall be paid to the claimant/appellant as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). (e) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge M.A.C.A. No.1588 of 2011 -: 8 :-