IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MACA.No. 1027 of 2011() ----------------------- O.P.(MV) NO.3007/03 OF M.A.C.T., THRISSUR. APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- RONY.P.D., S/O.P.V.DEVASSY, PUTHOOR HOUSE, P.O.PARAPPUR, THRISSUR DISTRICT, PIN-680 552. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): --------------- 1. SAJITH.E.B., S/O.BALAKRISHNAN, EDATHARA HOUSE, KOONAMOOCHI, THRISSUR DISTRICT-680 001. 2. ROY, S/O.DEVASSY,PUTHOOR HOUSE, P.O.PARAPPUR, THOLLUR, THRISSUR-680 001. 3. UNITED INDIA INSURANCE CO. LTD, DIVISIONAL OFFICE, PARK HOUSE, ROUND NORTH, THRISSUR-680 001. ADV. SRI.RAJESH THOMAS FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- M.A.C.A. No. 1027 of 2011 ------------------------------------------------- Dated this the 2nd day of November, 2011 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 23/11/2002. He had suffered multiple injuries including fracture of left femur, fracture of tibia and fibula (left) and fracture of left maxilla. There was also temporal traumatic subarachnoid hemorrhage. He was treated by interlocking nailing of both tibia and femur. Calcaneal pintraction was also resorted to. He was an inpatient for a period of 16 days. He allegedly suffered permanent disability. The Doctor, who issued Ext.A9 certificate, was examined. That showed that the whole body disability was assessed at 20%. The Tribunal by the impugned award, against a total claim of `4,63,750/-, directed payment of an amount of `1,65,808/- as compensation as per the details given in paragraph-13 which we extract below: M.A.C.A. No. 1027 of 2011 -: 2 :- Sl.No,. Head of claim Amount awarded Basis vital details in a nutshell 1 Loss of earning (total) 12500/- .. 2 Loss of earning (partial) .. .. 3 Medical and miscellaneous expenses 63808/- .. 4 Future treatment .. .. 5 Bystander's expenses 4000/- .. 6 Transportation expenses 2000/- .. 7 Extra-nourishment 2000/- .. 8 Damage to clothing etc., 500/- .. 9 Pain and suffering 30000/- .. 10 Disability. Loss of earning power, Loss of amenities, Discomfort 51000/- 2500 x 12 x 17 x 10/100 Total 1,65,808/- 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company who has been made entirely liable under the impugned award to satisfy the award. Challenge is raised only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant, first of all, submits that the Tribunal has erred grossly in reckoning the monthly income of the appellant at `2,500/-. He was a Plumber and Electrician. In any view of the matter, the monthly income reckoned by the Tribunal is grossly inadequate, contends counsel. The learned counsel brings to out notice the decisions in Lata Wadhwa v. State of Bihar M.A.C.A. No. 1027 of 2011 -: 3 :- (AIR 2001 SC 3218) and Laxmi Devi v. Mohammad Tabbar (2008 ACJ 1488). Reasonable inferences ought to have been drawn by the Tribunal, contends counsel. We agree that the monthly income of the claimant/appellant in the year 2002 could safely have been reckoned at `3,000/-. The quantum of compensation awarded under the head of loss of earnings and loss of earning capacity will therefore have to be proportionately enhanced. 4. The learned counsel for the appellant then contends that the Tribunal erred grossly in reducing 20% physical disability certified by P.W.1 in Ext.A9 and accepting the same as only 10%. This is done arbitrarily, it is lamented. The Tribunal appears to have been impressed by the fact that the appellant gave answers which did not suggest any loss of memory which is one item of disability reckoned by P.W.1 to assess 20% disability in Ext.A9. In any view of the matter, the reduction in earning capacity from 20% to 10% is not justified, contends counsel. 5. Physical disability and reduction in earning capacity are not synonymous and the Tribunal cannot be found fault with for not accepting 20% as the resultant reduction in earning capacity. However, taking into account the details available from Ext.A9 as also the evidence of the author of Ext.A9, we are satisfied that M.A.C.A. No. 1027 of 2011 -: 4 :- slashing down the reduction in earning capacity from 20% to 10% is not justified. In the facts and circumstances of this case, we are satisfied that 14% can safely be reckoned as the extent of reduction in earning capacity. 6. The learned counsel for the appellant then points out that the Tribunal has not awarded any amount under the head of loss of amenities, even though the physical disability is proved and accepted by the Tribunal. The permanent disability suffered by a person leaves behind two fold reflections on his life. It reduces his earning capacity. It also impairs and reduces the quality of enjoyment of life which the victim can aspire for the rest of his life. We are satisfied that under the head of loss of amenities appropriate amount of compensation deserves to be awarded to the appellant, a person aged below 25 years. 7. The learned counsel for the appellant then contends that only the actual bills produced have been taken into reckoning while awarding compensation under the head of medical and miscellaneous expenses. The Tribunal has not even taken note of the fact that implants were in situ and the Doctor had advised removal of implants. We are satisfied that under the head of medical and miscellaneous expenses a total amount of `70,000/- can safely be awarded (including probable future expenses). M.A.C.A. No. 1027 of 2011 -: 5 :- 8. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `63,372/- (Rupees sixty three thousand three hundred and seventy two only) as compensation in addition to the amount already awarded by the Tribunal; 1. Loss of earnings (`3,000/- x 5 minus `12,500/-) - `2,500/- 2. Medical and miscellaneous expenses (`70,000/- minus (`63,808/-) - `6,192/- 3. Reduction in earning capacity (3000 x 12 x 17 x 14/100 = `85,680/- minus `51,000/-) - `34,680/- 4. Loss of amenities - `20,000/- ------------ Total - `63,372/- ===== 9. We are not persuaded to agree that the amount awarded under any other head deserves or warrants interference. We take note of the submission of the learned counsel for the insurance company that already an amount of `30,000/- has been awarded under the head of pain and suffering and that is excessive. Considering the nature of the injuries, nature of procedures undergone, and the period of treatment as inpatient and outpatient, we are satisfied that the amount of compensation awarded under the head of pain and suffering is also reasonable. M.A.C.A. No. 1027 of 2011 -: 6 :- 10 In the resultz; (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `63,372/- (Rupees sixty three thousand three hundred and seventy two only) as compensation 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 specified by the Tribunal in the impugned award. (d) 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. 1027 of 2011 -: 7 :- R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- C.M. Appl. No.1584 of 2011 in M.A.C.A. No. 1027 of 2011 ------------------------------------------------- Dated this the 2nd day of November, 2011 JUDGMENT This petition is to condone the delay of 24 days in filing the M.A.C.A. Heard the learned counsel for the appellant and the learned counsel for the insurance company who has been made entirely liable under the impugned award. We take a lenient view. Petition allowed. Delay condoned. R. BASANT (Judge) K. SURENDRA MOHAN (Judge) Nan/ M.A.C.A. No. 1027 of 2011 -: 8 :-