IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 MACA.No. 1441 of 2004() ----------------------- OPMV.304/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: ---------------------------------------- M.K. GOPINATHAN, S/O. P. NARAYANAN NAIR, SHIVA SADAN, P.O. VADAKKUMPAD,THALASSERY. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE, BY ADV.MR.P.RAJKUMAR RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. J. KRISHNA, S/O. MALAPPA, PALIMAR ESTATE, KODIALGUTHU, KODIALBAIL, MANGALORE-3. 2. M/S. ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER,KANNUR. 3. SHEKARA P., S/O. MADHAVAN VELICHAPPADAN, MUKU HOUSE, MUKU, KASARAGODE. 4. K. KHADER, S/O KUNHAHAMMED, KORAMBATH HOUSE, THOOVAKKUNNU, THALASSERY. 5. M/S. UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KANNUR. 6. SHAHIDA, W/O. LATE RAZAK, VATTAPPARA VEEDU, MANGATTIDAM, VIA.KOOTHUPARAMBA. 7. NIKSHAD (MINOR), S/O. LATE RAZAK, REPRESENTED BY MOTHER AND NEXT GUARDIAN SAHIDA, VATTAPPARA VEEDU, AYYAPPAN THODU, MANGATTIDAM, VIA.KOOTHUPARAMBA. R2 BY ADV. MR.GEORGE CHERIAN (THIRUVALLA) R5 BY SMT.RAJI T.BHASKAR R6 & R7 BY MR.P.M.PAREETH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.1441 of 2004 ---------------------------------------- Dated this the 5th day of March 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He claimed compensation for personal injuries suffered in a motor accident which took place on 15/5/1996. He claimed an amount of Rs.75 lakhs as compensation. He is an engineer employed abroad. He was aged 34 years at the time of the accident. He was allegedly earning an amount of Rs.50,000/- as salary per mensum from his employment at Malaysia. He suffered serious injuries in the accident - fracture of the right humerus and fracture of the right radius and ulna. The severe crush injury on the right upper arm and forearm had completely damaged the right brachial artery. Amputation of the right arm above the elbow was hence done under general anesthesia. He had allegedly suffered substantial permanent partial disability. 2. The claim of the appellant was taken up along with other connected matters. By the impugned award, the tribunal directed payment of a total amount of Rs.5,15,700/- along with interest @ 9% per annum initially and at 6% per annum from M.A.C.A.No.1441/04 2 31/12/2001. The amounts were awarded under the following heads: 1. Transportation charges and Rs.23,000/- medical bills 2. Loss of income Rs.18,000/- (Rs.3,000/- x 6) 3. Pain and suffering Rs.30,000/- 4. Compensation for reduction Rs.4,28,400/- in earning capacity (Rs.3,000/- x 12 x 17 x 70/100) 5. Loss of amenities Rs.10,000/- 6. Expenses for hospitalisation, Rs.6,300/- bystanders etc. Total Rs.5,15,700/- 3. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of challenge which the learned counsel for the appellant wants to mount against the impugned award, the learned counsel for the appellant first of all contends that the quantum of monthly salary reckoned by the tribunal is painfully and perversely low and absolutely unrealistic. The appellant was a qualified engineer. He was employed abroad. He had claimed that his monthly income was Rs.50,000/-. He produced documents to indicate that the same was his monthly salary. The tribunal, in these circumstances, erred grossly in M.A.C.A.No.1441/04 3 reckoning only Rs.3,000/- per mensum as the monthly salary. 4. When claim is made by persons temporarily employed abroad, these would be several imponderables for consideration. For what period of time they could have worked abroad, how long they could have earned the lucrative salary offered at places abroad are all questions which will have to be contemplated and decided by the tribunal. The tribunals do not commit any error warranting appellate interference if they do not blindly accept the present monthly salary as the multiplicand to be reckoned for the purpose of ascertaining future loss. The totality of circumstances will have to be taken into account. The tribunal, in this case, was not too convinced about the employment abroad and the salary which such employment fetches. We are of the opinion that the tribunal must have reasonably assessed the monthly salary which the appellant was earning at the relevant time and would have earned for the period for which compensation is computed. So reckoned, we are satisfied that it would be absolutely reasonable to reckon monthly income/multiplicand at Rs.5,000/- per mensum for the claimant considering the totality of circumstances. Consequently, he will be entitled for higher amounts as compensation for loss of income as also compensation for reduction in earning capacity. M.A.C.A.No.1441/04 4 5. The appellant, a young person, aged about 34 years, had suffered devastating disablement as a result of the accident. His right upper arm above the elbow had to be amputated. The learned counsel for the appellant submits that the tribunal did not assess the quantum of compensation payable for loss of amenities reasonably. In awarding an amount of Rs.10,000/- only as compensation for loss of amenities, the tribunal did not take into account the gross nature of disability suffered as also the period in future for which the disability will have to be endured by the appellant. The reduction in the quality of enjoyment of life, consequent to the disability suffered was not reasonably reckoned by the tribunal, it is contended. We have taken note of the totality of the circumstances and feel that an amount of Rs.30,000/- must have been awarded under the head of loss of amenities. 6. The learned counsel for the appellant contends that the tribunal had refused to award compensation for medical expenses incurred - for payment of fee to the doctors for the reason that the hospital through which such payments were made to the doctors has not issued authenticated bills for such expenses incurred. The learned counsel for the appellant submits that it would be totally irrational for the court not to take cognizance of the methodology M.A.C.A.No.1441/04 5 adopted by the private nursing homes of giving only in-patient bills and collecting fee payable to freelance doctors by way of amounts as per vouchers/bills issued by them on plain paper/letter heads. We are satisfied that in the facts and circumstances of this case an amount of Rs.6,000/- must have been awarded as fees/charges to the doctors who attended on the appellant while he was an in- patient for a period of 42 days. No amount is seen awarded for extra nourishment. Canteen bills for Rs.4,315/- were produced. We are satisfied considering the period of hospitalisation that an amount of Rs.4,200/- (Rs.100/- each) could safely have been awarded as expenses for extra nourishment of the appellant who had suffered such major injuries. 7. The learned counsel for the appellant contends that the interest awarded for the period after 31/12/2001 - @ 6% per annum is not justified at all. Relying on precedents, it is contended that interest must have been awarded at least @ 7.5 % per annum. We agree with the learned counsel for the appellant. 8. The above discussions lead us to the conclusion that the appellant is entitled for the following further amounts in addition to the amounts already awarded by the tribunal. M.A.C.A.No.1441/04 6 1. Loss of earnings Rs.12,000/- more [(Rs.5,000/- x 6) minus Rs.18,000/- 2. Loss of amenities Rs.20,000/- more (Rs.30,000/- minus Rs.10,000/-) 3. Compensation for reduction Rs.2,85,600/- more in earning capacity (Rs.5,000/- x 12 x 17 x 70/100) minus Rs.4,28,400/- i.e. [(Rs.7,14,000/-) minus Rs.4,28,400/-)] 4. Extra nourishment Rs.4,200/- 5. Bills for payment to doctors Rs.6,000/- Total Rs.3,27,800/- more 9. The entire amount shall carry interest at the rates specified by the tribunal till 31/12/2001. Thereafter interest shall be payable on the entire amount @7.5% per annum. 10. This appeal is allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.1441/04 7 M.A.C.A.No.1441/04 8 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009