IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 MACA.No. 796 of 2011(D) ---------------------- OPMV.1305/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT : PETITIONER ------------------------ P.P.SANTHOSHAN, S/O. LATE SRI. PADMANABHAN, POOPAPANAYIL HOUSE, MARADU P.O., MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI RESPONDENTS : RESPONDENTS -------------------------- 1. M.VELAYUDHAN NAIR, S/O. SRI.MADHAVAN NAIR, GRASS HOUSE, OPP. TO SAI NIKETHAN, MONASTRY ROAD, KARIMKKAMURI, ERNAKULAM, KOCHI-682 011. 2. THE NEW INDIA ASSURANCE COMPANY LTD., CHANDRIKA BUILDINGS, M.G.ROAD, ERNAKULAM. 3. NATIONAL INSURANCE COMPANY LIMITED, TRIPPUNITHURA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 SRI.P.LEAN JOSE FOR R1 SRI.KKM.SHERIF FOR R2 SRI.LAL K.JOSEPH FOR R2 SRI.A.A.ZIYAD RAHMAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2011 ALONG WITH MACA NO.843 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A Nos.796 of 2011-D and 843 of 2011-A ***************************** Dated this the 24th day of October, 2011 JUDGMENT BASANT, J. The claimant and the insurance company (which has been made entirely liable) have come before this Court to challenge the impugned award. Both appellants challenge only the quantum of compensation which the Tribunal has directed to be paid. 2. The claimant/injured had claimed compensation for the loss suffered by him as a result of the personal injuries suffered by him in a motor accident which took place on 31.12.2005. He had suffered multiple injuries including fractures. He underwent treatment as an inpatient for a total period of 74 days in 4 spells during the period from 31.12.2005 to 27.04.2007. He had suffered type 3 open communited fracture tibia/fibula lower third of the right leg. He had further suffered type 2 open communited fracture shaft of right femur. He had also suffered type 1 open communited fracture right patella. Bone fragments were exposed. Muscles were crushed M.A.C.A Nos.796 of 2011-D and 843 of 2011-A 2 and there was bleeding injuries. There was 15 X 15 c.m lacerated wound on the anterior aspect of lower half of the leg extending into ankle. He had undergone various surgical procedures. He had suffered physical disability to the tune of 12% as reported in Ext.X1 by the Medical Board. Against a total claim of Rs.10 lakhs, the Tribunal awarded a total amount of Rs.4,98,492/- as per the details given in para.21 of the impugned award which we extract below: Sl.No. Head of claim Amount awarded 1 Loss of earnings Rs. 14,000.00 2 Transport expenses to hospital and back home Rs. 5,000.00 3 Damage to clothing Rs. 500.00 4 Extra nourishment Rs. 5,000.00 5 Medical expenses Rs.2,68,472.00 6 Bystander's expenses Rs. 15,000.00 7 Compensation for pain and sufferings Rs. 50,000.00 8 Compensation for continuing and permanent disability Rs. 65,520.00 (3500X12X13X12 (multiplier) 9 Compensation for loss of earning power Rs. 25,000.00 10 Compensation for loss of convenience in life Rs. 50,000.00 Total Rs.4,98,492.00 3. We have heard the learned counsel for the M.A.C.A Nos.796 of 2011-D and 843 of 2011-A 3 appellant/claimant and the appellant/insurance company. Both counsel assail the impugned award on the ground that the quantum of compensation awarded is not proper. 4. The learned counsel for the claimant submits that the Tribunal had gone grievously wrong in reckoning only 4 months as the period of involuntary unemployment. He was actually unable to pursue his normal avocation till 27.04.2007, the date of discharge after the last spell of hospitalisation. He had to continue treatment and was unable to pursue his normal avocation for such a long period from 31.12.2005 to 27.04.2007, contends the learned counsel. Loss of earnings has been awarded only for a period of 4 months. We are certainly persuaded to agree that the quantum of compensation payable under the head of loss of earnings deserves to be enhanced. 5. The learned counsel for the appellant/claimant further submits that the Tribunal had gone wrong in reckoning only 13 as the multiplier. It is not disputed that the age of the claimant as per the relevant documents is 44 years (date of birth – 06.05.1961). We agree with the learned counsel for the appellant that 15 must, in these circumstances, have been M.A.C.A Nos.796 of 2011-D and 843 of 2011-A 4 accepted as the multiplier as indicated in the Second Schedule to the Motor Vehicles Act. The learned counsel for the appellant/claimant further submits that the amount awarded under the various other heads are also not sufficient and satisfactory. 6. We now come to the contentions of the learned counsel for the insurance company. The learned counsel for the insurance company submits that the Tribunal erred in reckoning Rs.50,000/- as the compensation for pain and suffering. The Tribunal further erred in awarding an amount of Rs.50,000/- as compensation for loss of amenities and conveniences in life. At any rate, the Tribunal erred in awarding a further amount of Rs.25,000/- as compensation for loss of earning power after having awarded an amount of Rs.65,520/- by resorting to the multiplier-multiplicand. 7. We have considered the challenge raised by the learned counsel for the insurance company. We are in ready agreement that the award of a further amount of Rs.25,000/- in addition to the amount of compensation for reduction in earning capacity calculated by the multiplier-multiplicand method is M.A.C.A Nos.796 of 2011-D and 843 of 2011-A 5 incorrect. No further amount of compensation for loss of earning power is liable to be awarded after ascertaining the quantum of compensation under the head of reduction in earning capacity. 8. That leaves us with the question whether the amount of Rs.1 lakh awarded by the Tribunal under the composite head of pain and suffering and loss of convenience (50,000 + 50,000) in life is correct . We have no hesitation to agree that the amount awarded under these two heads are relatively higher. But we do take note of the fact that for loss of earnings, period of involuntary unemployment has been reckoned only as 4 months. We do further note that the claimant must have been put to very great pain and suffering during the period of treatment which, as referred to earlier, was completed only on 27.04.2007 - when he was ultimately discharged from the hospital. We are certainly of the opinion that the period of involuntary unemployment must have been taken at a higher rate. 9. We do, in these circumstances, take note that under the head of loss of earnings, there is deficiency in the amount awarded, whereas compensation for loss of earning power M.A.C.A Nos.796 of 2011-D and 843 of 2011-A 6 (Rs.25,000/- awarded) is improper and incorrect. We are satisfied that the quantum of compensation deserves to be reworked taking all the relevant inputs into account. 11. We are, in these circumstances, satisfied that the claimant is entitled to a total amount of Rs.4,97,072/- as compensation as per the details given below: i) Loss of earnings : Rs.52,500.00 (15 months) (3,500 X 15) ii) Transport expenses : Rs. 5,000.00 (as awarded by the Tribunal) iii) Damage to clothing : Rs. 500.00 (as awarded by the Tribunal) iv) Extra nourishment : Rs.10,000.00 (only Rs.5,000/- awarded by the Tribunal) v) Medical expenses : Rs.2,68,472.00 (as awarded by the Tribunal) vi) Bystander's expenses : Rs.15,000.00 (as awarded by the Tribunal) vii) Compensation for pain and suffering : Rs.35,000.00 (Rs.50,000/- awarded by the Tribunal) viii) Compensation for continuing permanent M.A.C.A Nos.796 of 2011-D and 843 of 2011-A 7 disability : Rs.75,600.00 (only Rs.65,520/- awarded (3500X12X15X12/100) by the Tribunal) ix) Compensation for loss of conveniences and amenities in life : Rs.35,000.00 (the Tribunal awarded Rs.50,000) ......................... Total : Rs.4,97,072.00 ========= 12. We are not persuaded to agree that any other/further amounts are liable to be paid. 13. The Tribunal has directed that proportionate cost shall be payable. We make it clear that proportionate cost in the proceedings before the Tribunal shall be worked out as held in Jeena V. Satheesh Babu.K [2011(3) KLT 943]. 14. In the result: a) This M.A.C.A is allowed in part; b) In supersession of the award passed by the Tribunal, it is held that the appellant/claimant is entitled to a total amount of Rs.4,97,072/- (Rupees Four lakhs ninety seven thousand and seventy two only) as compensation; c) We make it clear that the entire amount of M.A.C.A Nos.796 of 2011-D and 843 of 2011-A 8 compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) Proportionate cost shall be calculated, we clarify, as held in Jeena (supra); e) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/