IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 MACA.No. 544 of 2011(D) ---------------------- AGAINST THE AWARD IN O.P(MV) NO.584/04 OF MACT, PUNALUR .......................... APPELLANT: -------------- JAYADEVAN, S/O.NARAYANAN ACHARY, AJITHA VILASOM, NEAR KOLLIKAVU, AEROM,ANCHAL. BY ADV. SRI. K.SIJU KAMALASANAN RESPONDENTS : RESPONDENTS --------------- 1. JOSE KOCHUMMEN,S/O.KOCHUMMEN,VARUR (H), DALI, KANTACHIRA, KULATHUPUZHA(P.O) – 691 310 (DELETED). 2. SUDEER, ANJILIMOOTTIL VEEDU, CHANDANACAVU, KULATHUPUZHA.P.O – 681 310. 3. NISAMUDEEN,S/O.E.S.ABDEEN, THENGUVILA PUTHEN VEEDU, NELLIMOODU,KULATHUPUZHA P.O – 691 310 (DELETED). 4. THE BRANCH MANAGER, M/S.NATIONAL INSURANCE CO.LTD, KOLLAM BRANCH-691 001. (Respondents 1 and 3 are deleted from the array of parties as per order in I.A.No.2628 of 2011 dated 25.10.2011) ADV. SRI.M.A.GEORGE FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** I.A.No.2628 of 2011 in M.A.C.A No.544 of 2011-D ***************************** Dated this the 25th day of October, 2011 ORDER/JUDGMENT BASANT, J. Heard. Allowed. Respondents 1 and 3 are deleted from the array of parties. M.A.C.A No.544 of 2011 Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a road traffic accident which occurred on 10.07.2004. He claimed to be a carpenter earning a monthly income of Rs.2,700/-. He had suffered multiple injuries including fracture of the right femur, fracture of the nasal bone and fracture of the right upper incisor (broken). He was an inpatient for 67 days. He had suffered permanent disability as a result of the accident. He was sent to the Medical Board at Taluk Hospital, Punalur. The extent of physical disability was assessed at 20%. It was noted that he, inter alia, has bony ankylosis of the right knee joint and shortening by 1 inch of the right lower limb. There was chronic discharge of sinus over lower limb of right thigh lateral aspect also. Against a total M.A.C.A No.544 of 2011 2 claim of Rs.1.5 lakhs, the Tribunal awarded an amount of Rs.92,175/- as compensation as per the details given in para.10 of the impugned award which we extract below: Sl. No. Head of claim Amount awarded 1 Loss of earning power Rs. 8,000.00 (2000X4) 2 Damage to clothing Rs. 500.00 3 Transportation to hospital Rs. 2,500.00 4 Extra nourishment Rs. 3,350.00 (50X67) 5 Expenses for medicine and bystander Rs. 16,000.00 (bills produced) Rs. 5,025.00 (75 X 67) 6 Pain and suffering Rs. 10,000.00 7 Permanent disability Rs. 46,800.00 (2400X13X15/100) Total Rs. 92,175.00 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company, which has been made entirely liable under the impugned award. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the Tribunal erred grossly in reckoning only Rs.2,000/- as the monthly income. The appellant had claimed only Rs.2,700/- as the monthly income. The same ought to have been accepted. Even M.A.C.A No.544 of 2011 3 for an unskilled manual worker, going by the dictum in Laxmi Devi & Ors. V. Mohammad Tabbar & Anr. [2008 ACJ 1488], it is absolutely reasonable even in the absence of better evidence to conclude that his monthly earning would be Rs.3,000/-, points out counsel. We agree with the learned counsel for the appellant and hold that Rs.2,700/- as claimed can be accepted as the monthly income. 4. The learned counsel for the appellant then submits that the Tribunal has arbitrarily reduced the extent of physical disability from 20% to 15%. The Medical Board's report was unjustifiably not accepted by the Tribunal and the extent of reduction in earning capacity was reduced to 15%. We have been taken through the details available in Ext.A16 disability certificate. We find no reason not to accept the assessment of the Medical Board that disability to the extent of 20% has resulted. We are further satisfied that it can safely be assumed that there must have been identical reduction in earning capacity. The fact that the appellant is a carpenter ought to be taken note of in these circumstances. 5. For pain and suffering, the Tribunal had awarded only an amount of Rs.10,000/- as compensation. This is unrealistic, M.A.C.A No.544 of 2011 4 contends the learned counsel. The learned counsel takes us through the nature of injuries suffered as also the period of hospitalisation. We agree that the amount of compensation under the head of pain and suffering deserves to be enhanced to Rs.20,000/-. 6. Finally it is contended that no amount of compensation has been awarded under the head of loss of amenities. The appellant has suffered physical disability to the extent of 20%. Such physical disability suffered by a person will have two fold reflections on the life of the victim. It reduces the earning capacity. It also reduces and impairs the quality of enjoyment of life, which the victim can aspire to lead for the entire rest of his life. The appellant is shown to be a person aged 47 years at the time of the accident. We are satisfied that an amount of Rs.15,000/- deserves to be awarded under the head of loss of amenities. 7. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.67,940/- as shown below as compensation in addition to the amount of compensation already awarded by the Tribunal. i) Loss of earnings : Rs. 5,500.00 M.A.C.A No.544 of 2011 5 (2700X5 = 13,500 minus 8000) ii) Pain and suffering : Rs.10,000.00 (20,000 minus 10,000) iii) Reduction in earning capacity : Rs.37,440.00 (2,700X12X13X20/100 = 84240 minus 46,800) iv) Loss of amenities : Rs.15,000.00 -------------------- Total : Rs.67,940.00 ======== 8. The learned counsel for the appellant points out that proportionate cost as held in Jeena V. Satheesh Babu.K [2011 (3) KLT 943] has not been awarded. We are persuaded to agree that the appellant is entitled to proportionate cost before the Tribunal on the entire amount of compensation as held in Jeena (supra). 9. We are not persuaded to agree that the amount awarded under any other head deserves appellate interference. 10. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.67,940/- (Rupees Sixty seven thousand nine hundred and forty only) in addition to the amount of compensation already M.A.C.A No.544 of 2011 6 awarded by the Tribunal under the impugned award; c) 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; d) We further direct that the appellant shall be entitled to receive proportionate cost in the proceedings before the Tribunal for the entire amount of compensation as held in Jeena (supra); e) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/