IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 68 of 2005()
1. JOY, S/O.ANTONY,
... Petitioner
Vs
1. JANARDANAN, S/O.GANGADHARAN,
... Respondent
2. MANAGER, THE ORIENTAL INSURANCE CO.,
For Petitioner :SRI.P.V.BABY
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :12/02/2009
O R D E R
R.BASANT & P.R.RAMACHANDRA MENON, JJ.
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M.A.C.A. No.68 of 2005
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Dated this the 12th day of February, 2009
JUDGMENT
R.BASANT, J.
The claimant before the Tribunal is the appellant before us.
He had claimed an amount of Rs.1.5 lakhs as compensation for
the personal injuries suffered by him in a motor accident. The
claimant was a press operator employed by the Appolo Tyres.
He was earning an income of Rs.5,103/- per mensem at the time
of the accident as shown in Ext.A11 certificate. He was aged 37
years on the date of the accident. The accident took place on
20.02.98. In two spells, the appellant was an inpatient for 5
days. Injury was suffered to the right knee. There was a
disability to the right knee consequent to internal derangement.
PW1-doctor assessed the permanent disability at 12% under
Ext.A1 certificate. The claimant examined himself as PW2 and
the said doctor as PW1. Exts.A1 to A12 were marked.
2. The Tribunal on a consideration of all the relevant
circumstances sailed to the conclusion that the appellant is
entitled only for an amount of Rs.27,950/- as compensation. The
M.A.C.A. No.68 of 2005 2
appellant has come before this Court lamenting that the amount
awarded is grossly and painfully inadequate and low.
3. Called upon to explain the specific grounds of
challenge, the learned counsel for the appellant first of all
contends that though the appellant was employed under a
reputed company and salary certificate Ext.A11 was produced to
show that his salary at the time of the accident was Rs.5,103/-,
the Tribunal without any other justification except that the
employer has not been examined, refused to accept and act upon
the said certificate. There was no objection against the said
certificate and it would be unreasonable to doubt the veracity
and acceptability of that certificate, contends the learned
counsel for the appellant. We are inclined to agree with the
learned counsel for the appellant. We find no reason why
Ext.A11 should not have been accepted by the Tribunal. The
mere fact that the formal proof of Ext.A11 was not offered is
according to us, too inadequate a reason not to accept the same
at all. We accept that the monthly income can be reckoned as
per Ext.A11 at Rs.5,103/-. For loss of earnings, of course the
appellant would have only lost his leave, he is entitled to one
month’s income as held by the Tribunal, which we fix at
Rs.5,103/-.
M.A.C.A. No.68 of 2005 3
4. It is next contended that the quantum of
compensation awarded for pain and suffering, loss of earning
capacity consequent to disability and loss of amenities following
disability are all perversely low. We take note of the injury as
also the period of hospitalisation and the procedures that were
undergone by the appellant for treatment. We agree with the
learned counsel for the appellant that award of only an amount
of Rs.4,000/- as compensation for pain and suffering is not
adequate. We are satisfied that award of an amount of
Rs.7,500/- shall be fair and reasonable in the circumstances.
5. There is no dispute now that disability was suffered by
the appellant. The evidence of PW1 and Ext.A1 shows that the
disability was fixed at 12%. We have been taken through Ext.A1
and the nature of the physical inadequacy suffered by the
appellant as a result of the accident. The Tribunal accepted only
4% as disability. We must say that Ext.A1 does not inspire
complete confidence. At any rate we are inclined to agree with
the learned counsel for the appellant that a higher percentage of
disability could certainly have been accepted by the Tribunal.
Having considered all the relevant inputs, we are satisfied that
8% disability must have been suffered by the appellant.
M.A.C.A. No.68 of 2005 4
6. This disability of 8% has had no reflection on the
earning capacity of the appellant at present. There is no
contention that his income by way of monthly salary has been
reduced. Until the age of retirement, at the Bar it is submitted
that it is 58 years, the appellant is not likely to suffer any
reduction in earnings on account of such disability. But we
agree with the learned counsel for the appellant that post
retirement employment prospects would certainly be affected.
We also agree with the counsel that until he retires from service,
to meet the demands of his employment and to do the same work
which he was earlier doing, extra strain and efforts will have to
put in by him and he is certainly entitled for compensation on
these grounds. Merely because his monthly income has not at
present brought down, it may not be reasonable to deny him
compensation for loss of earning capacity. As we have already
noted, we are persuaded to agree that the monthly income can
be reckoned at Rs.5,103/-. While adopting the multiplier we
have to realistically note that there is no reduction in earning for
the entire period till his retirement on superannuation. We take
note of the possible reduction in earnings after he attains the
age of superannuation, ie. 58 years. We also take note of the
extra strain/effort which he may be obliged to put in to turn out
M.A.C.A. No.68 of 2005 5
the same amount of work. We are, in these circumstances,
satisfied that 8 can be adopted as the multiplier notwithstanding
the fact that under the second schedule, for a person aged
between 55 years and 60 years, 16 has been stipulated as the
multiplier.
7. We now come to the claim for compensation under the
head of loss of amenities. The physical disability suffered by him
would certainly impair the quality of enjoyment of life which the
appellant can aspire and only an amount of Rs.4,500/- has been
awarded under this head. Even reckoning that physical
disability to be 8%, considering the age of the appellant, we are
satisfied that the appellant is entitled for a higher amount of
compensation under the head loss of amenities and enjoyment of
life. An amount of Rs.8,000/-, we are satisfied, shall serve the
ends of justice.
8. The counsel finally contends that the rate of interest
awarded is grossly inadequate. Interest only @ 6% is awarded.
Such award at least must have been fixed @ 7.5%, contends the
counsel. We are in agreement with the counsel.
9. The above discussions lead us to the conclusion that
the appellant is entitled to the following further amounts by way
of compensation.
M.A.C.A. No.68 of 2005 6
i) Loss of earning – Rs.2,603/- [5,103 – 2,500]
ii) Pain and suffering – Rs.3,500/- [7,500 – 4,000]
iii) Loss of amenities and
enjoyment of life – Rs.6,500/-[8,000 – 1,500]
iv) Loss of earnings
consequent to disability – Rs.19,991/-
{5103 X 12 X 8 X 8/100] minus
19,200} = [39191 – 19200] =
Rs.19991/-
In the result:
a) This appeal is allowed in part;
b) It is held that the appellant is entitled to a further
amount of Rs.32,594/- in addition to the amounts already
awarded by the Tribunal;
c) It is further directed that interest shall be payable on
the total amounts @ 7.5% per annum from the date of the
petition to the date of realisation. Cost as directed by the
Tribunal shall also be paid.
(R.BASANT, JUDGE)
(P.R.RAMACHANDRA MENON)
rtr/-