IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 MACA.No. 1490 of 2011() ----------------------- OPMV.462/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): PETITIONER IN OPMV -------------------------------- K. ARSHAD,28 YEARS,S/O.MOHAMMED SHEREEF, KANHIRAKKADAN HOUSE,PO VELLUVANGAD SOUTH, VIA PANDIKKAD,MALAPPURAM. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): --------------- 1. B.SAHADEVAN,S/O.BALAN,THOTTATHIL HOUSE, PO KONGAD, PALAKKAD DISTRICT (DRIVER) 678 001. 2. C.V.GEETHA,W/O.SRI RAMACHANDRAN, KRISHNA NIVAS,PO CHERIYA,KONGAD,PALAKKAD DISTRICT (OWNER) 678 001. 3. THE NEW INDIA ASSURANCE CO.LTD., M.A.LINE T.B.ROAD,PALAKKAD 678 001. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ -------------------------------------------- M.A.C.A. NO. 1490 OF 2011 ------------------------------------ Dated this the 8th day of November, 2011. JUDGMENT Basant, J. Claimant is the appellant. He a 24 year old teacher, claimed compensation for personal injuries suffered by him in a motor accident which took place on 22.05.2004. He was riding a motor cycle at the relevant time. There was a collision between his motor cycle and a bus (the insured vehicle hereinafter). He contended that the driver of the insured vehicle was entirely responsible for the accident. Police after investigation had filed a charge sheet raising allegations of culpable negligence against the driver of the insured vehicle. 2. The Tribunal, by the impugned Award, came to the conclusion that the responsibility for the accident must be borne equally by both drivers. Accordingly it was found that the claimant would be entitled only for 50% of the loss suffered by him as compensation. The Tribunal against the claim of Rs.7,75,500/- came to the conclusion that the total loss suffered was only Rs.6,49,411/- as per the details given in 2 MACA No. 1490/2011 the summary of compensation claimed and allowed appended to the impugned Award. We extract the same below. Summary of compensation claimed and allowed. Sl. No. Head under which compensation is claimed Amount claimed (in Rupees) Amount awarded (in Rupees) Basis on which allowed/dis allowed with reasons in a nut shell 1 Loss of earnings 72,000/- 1,31,250/- Ext.A4 series 2 Partial loss of earning -- -- -- 3 Future treatment 1,00,000/- -- -- 4 Medical expenses 2,50,000/- 3,72,211/- Ext.A8 series 5 Bystander expenses 18,000/- 5,700/- 57 days 6 Damage to clothing 500/- 250/- Nominal amount 7 Transportation 60,000/- 5,000/- Numerous reviews prolonged treatment at two hospitals 8 Extra nourishment 25,000/- -- -- 9 Pain and suffering 50,000/- 25,000/- Severe fractures prolonged treatment 10 Loss of love and affection -- -- -- 11 Loss of consortium -- -- -- 12 Loss of estate - -- -- 13 Loss of dependency/ economic benefits -- -- -- 3 MACA No. 1490/2011 Sl. No. Head under which compensation is claimed Amount claimed (in Rupees) Amount awarded (in Rupees) Basis on which allowed/dis allowed with reasons in a nut shell 14 Loss of amenity and convenience 2,00,000/- 1,00,000/- Functional disability of 50% at a young age 15 Loss of earning power -- -- -- 16 Any other heads (Disfigurement) -- 10,000/- Disfigureme nt and deformity Total 7,75,000/- 6,49,411/- reduced by 50% 9% p.a. interest on award amount from date of petition. The Insurance Company was made liable to compensate the appellant for 50% of the loss suffered by him. 3. We have heard the learned counsel for the appellant/ claimant and the learned counsel for the insurance company. Challenge is raised against impugned Award on two specific grounds. First of all, it is contended that the finding on the question of negligence is legally unsupportable. Secondly it is contended that the quantum of loss assessed by the Tribunal is 4 MACA No. 1490/2011 not correct. 4. Coming to the question of negligence no oral evidence was adduced by either side to throw light on the cause of the accident. It is admitted that the police had registered a crime and conducted investigation. After investigation, police had come to the conclusion that the driver of the insured vehicle was culpably negligent and such negligence was the cause of the accident. In the total absence of any better and contra evidence, following the dictum in New India Assurance Co. Ltd. V. Pazhani ammal [2011 (3) KLT 648], the Tribunal ought to have accepted the case of the appellant that the driver of the insured vehicle was entirely negligent and responsible for the accident, contends the learned counsel for the appellant. We accept the said argument. In the absence of any better evidence, following the dictum in New India Assurance Co. Ltd. V. Pazhani ammal [2011 (3) KLT 648], we agree that the driver of the insured vehicle has to be held responsible entirely for the accident. 5. Learned counsel for the appellant points out other reasons also. In another claim in respect of the same accident, 5 MACA No. 1490/2011 the tribunal, by Award dated 23rd July, 2010 in OP (MV) 379/2006, had held that the driver of the insured vehicle was entirely responsible for the accident. In an appeal, a Division Bench of this Court by the judgment dated 15th March, 2011 in MACA No. 2431/2010, has upheld the said conclusion. In these circumstances, learned counsel argued that there is no justification in the finding of the tribunal that the appellant was equally responsible for the accident along with the driver of the insured vehicle. The learned counsel for the insurance company fairly accepts that such a finding has been upheld by the Division Bench of this Court. We are, in these circumstances, satisfied that the finding that the appellant had contributed 50% for the accident deserves to be set aside. We agree with the learned counsel for the appellant that the driver of the insured vehicle, that is the first respondent herein, was entirely responsible for the accident. Consequently respondents 1 to 3 are liable to pay the entire loss suffered by the claimant. 6. Coming to the quantum of compensation payable the learned counsel for the appellant advances a contention that reduction in earning capacity was not taken into account by the 6 MACA No. 1490/2011 tribunal at all. The tribunal had come to the conclusion that there was 50% physical disability as a consequence of the accident. Accepting that, the tribunal had awarded an amount of Rs. 1 lakh as compensation for loss of amenities and convenience. A further amount of Rs.10,000/- had awarded under the head of compensation for disfigurement and deformity. But the tribunal, taking note of the fact that the appellant does not immediately suffer any reduction in earning capacity because of the physical disability suffered by him, had not awarded any amount of compensation for loss of earning power. This approach made by the tribunal is incorrect. The tribunal ought to have noted that a person with decreased physical ability will have to put in harder labour to turn out the same amount of work. Hence the appellant will be forced to put in harder labour. This physical disability would certainly reduce the earning capacity of the appellant after he retires at the age of 55 years. For this dimension of the loss - the obligation of the appellant to put in harder labour to turn out the same amount of work and the probable loss of earnings during the post retiral phase of life of appellant, no compensation has been awarded, argues the learned counsel for the appellant. 7 MACA No. 1490/2011 We find merit in this contention. Learned counsel for the appellant submits that the appellant will have to retire at the age of 55 years. Going by the second schedule of the Motor Vehicles Act multiplier must be accepted as '8' for computation of reduction in earning capacity, For such period, the compensation payable will have to be worked out. The learned counsel for the insurance company on the contrary contends that the appellant's age was 24 at the time of the accident. 31 years is left to retire from his service. Now there is no reduction in earning capacity. It is in these circumstances no compensation is liable to be awarded as the quantum of compensation for reduction in earning capacity, contends the learned counsel for the insurance company. 7. We have considered all the relevant facts. Mechanically, compensation for reduction in earning capacity in the post retiral period cannot be ascertained by employing the multipier multiplicand method. That may not be justified. In the facts and circumstances we are satisfied that it will be absolutely fair and just not to award any amount as compensation under the head of reduction in earning capacity. 8 MACA No. 1490/2011 8. We have in these circumstances taken note of the physical disability and the obligation to put in harder labour to enable the appellant to turn out some amount of work to earn wages/salary without any loss. We also take note of the probable reduction in earning capacity during the post retiral phase of life of the appellant. Taking note of all the relevant circumstances we are satisfied that an appropriate amount can be awarded as compensation in this head. We fix Rs.75,000/- as the total amount of compensation payable under this head. 9. We are in these circumstances satisfied that the appellant will be entitled to a further amount of Rs. 75,000/- as loss in addition to the amount of Rs.6,49,411/- fixed by the tribunal as the loss suffered by the appellant. 10. In the result, a) This appeal is allowed in part. b) Finding of the Tribunal that appellant had contributed to the accident and there was contributing negligence to the extent of 50% is set aside. c) The appellant is found entitled to a total 9 MACA No. 1490/2011 amount of Rs. 7,24,411/-(6,49,411+75,000/-) (Rupees Seven lakhs twenty four thousand four hundred and eleven only) as compensation. d) 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. e) We direct that proportionate costs in the proceedings before the Tribunal on the entire amount of compensation hereby awarded shall be payable as per dictum in Jeena V. Satheesh Babu K. [2011 (3) KLT 943]. f) All other directions of the Tribunal are upheld. R. BASANT JUDGE V. CHITAMBARESH JUDGE dnc