High Court Kerala High Court

K.V.M.Preman vs United India Insurance Co. Ltd on 12 February, 2009

Kerala High Court
K.V.M.Preman vs United India Insurance Co. Ltd on 12 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1318 of 2006()


1. K.V.M.PREMAN,
                      ...  Petitioner

                        Vs



1. UNITED INDIA INSURANCE CO. LTD.,
                       ...       Respondent

                For Petitioner  :SRI.GRASHIOUS KURIAKOSE

                For Respondent  :SRI.JOHN JOSEPH VETTIKAD

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.
              ........................................................................
                         M.A.C.A. No. 1318 OF 2006
              .........................................................................
                    Dated this the 12th February , 2009


                                  J U D G M E N T

Basant, J. :

The claimant before the Tribunal is the appellant before us.

He claimed an amount of Rs. 1,60,000/- as compensation for the

personal injuries suffered by him in a motor accident. By the

impugned award, the Tribunal awarded only an amount of Rs.

49,750/- as compensation, as per the details precisely shown in

paragraph No.10 of the award.

2. The claimant is a Government employee. He was

drawing a monthly salary of Rs. 2722/- at the relevant time.

He suffered fracture of the right elbow. For 19 days he was an

inpatient in the hospital. Two surgeries had to be undergone. He

had allegedly suffered permanent disability also. It is alleged

that he has suffered permanent physical disability to the extent

of 40%.

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3. The claimant/appellant examined himself as P.W.1.

Exts. A1 to A6 were marked. The Tribunal was not prepared to

accept that 40% disability has been suffered by the claimant. A

certificate was issued by the medical board without a reference

by the Tribunal to the medical board. The Tribunal was not

satisfied that 40% disability could have been suffered as a

result of the fracture of elbow, as seen from the discharge

summary. The Tribunal, in these circumstances, reckoned only

5% as the physical disability admissible. On that basis, adopting

the multiplier- multiplicand method, the loss of earning capacity

was fixed at Rs. 26,131/-.

4. The appellant claims to be aggrieved by the quantum

fixed. Called upon to explain the nature of the specific challenge

against the award, the learned counsel for the claimant/appellant

submits that the Tribunal has erred grossly in not accepting the

disability certificate to conclude that 40% disability has been

suffered by the claimant/appellant. We are in complete

agreement with the Tribunal. Considering the nature of the

injuries as seen from the earlier medical records, the burden was

M.A.C.A. No. 1318 OF 2006

3

heavy on the claimant/appellant to prove that he had suffered

disability of 40% on account of such injuries suffered in the

accident. No satisfactory proof of the disability certificate was

even attempted and no reasons are forthcoming to explain such

a crucial omission. In the circumstances of the case, we are

satisfied that the Tribunal has not committed any error in

reckoning the disability at 5%. On the materials available before

the Tribunal, a better conclusion in favour of the appellant

appears to us to be impossible. We also take note of the fact

that though the appellant has not suffered any reduction in

earning capacity, the Tribunal had adopted the multiplier-

multiplicand method to assess the loss of earning capacity. Even

assuming that the appellant does not immediately suffer any loss

of earning consequent to the disability, considering the nature of

the alleged disability and the nature of the employment of the

appellant, he would certainly be forced to strain himself more to

produce the same out-come of work as he was doing hitherto

after suffering that disability. The impairment of the prospects

of his past retirement employment must also be taken note of.

M.A.C.A. No. 1318 OF 2006

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Taking all these into consideration, we are persuaded to agree

that the amount of Rs. 26,131/- awarded by the Tribunal towards

loss of earning capacity is fair, just and reasonable and does

not, at any rate, require upward modification.

5. Learned counsel for the appellant raised two more

grounds. It is submitted that considering the nature of the

injuries , period of hospitalisation and procedures undergone, the

amount of Rs. 6,000/- awarded under the head-‘pain and

suffering’, is inadequate. We are persuaded to agree with that

contention. We are satisfied that an amount of Rs.10,000/-

(Rupees ten thousand only) in all, i.e., Rs.4,000/- (Rupees four

thousand only) more can safely be awarded under the

head-‘pain and suffering’.

6. Learned counsel for the appellant further points out that

the 37 year old appellant, who had suffered disability, which the

Tribunal has accepted, must certainly be held to have suffered

reduction/impairment in the quality of life which he can aspire to

enjoy. The disability suffered must certainly have brought down

the quality of enjoyment of life. This aspect has not been taken

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5

into consideration by the Tribunal and no amount has been

awarded under the head-‘loss of amenities of life’, contends the

learned counsel. We are satisfied that the said omission

deserves to be corrected in this appeal. We are satisfied that

the award of an amount of Rs.10,000/- (Rupees ten thousand

only) under this head shall also meet the ends of justice.

7. The above discussions lead us to the conclusion that the

appellant is entitled for a further amount of Rs.14,000/- (Rupees

fourteen thousand only) in all, as per the details shown above, in

addition to the amount already awarded by the Tribunal.

8. The Tribunal has awarded interest at differential rates

for different periods. We are satisfied that the said awarding of

interest at different rates for different periods is justified in the

facts and circumstances of the case. But the award of only 6%

interest per annum for the period from 28.01.2005 till the date

of realisation does not appear to us to be justified. We accept

the contention of the learned counsel that interest at least at the

rate of 7.5% per annum must have been awarded for the period

from 28.01.2005 till the date of realisation.

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In the result:

(i) The appeal is allowed in part to the above extent.

(ii) It is held that the appellant is entitled for a further

amount of Rs.14,000/- (Rupees fourteen thousand only).

(iii) It is further directed that interest shall be payable on

the entire amount till 21.06.1996 at the rates already directed

by the Tribunal and that for the period from 28.01.2005, the

interest shall be paid on the whole amount at the rate of 7.5%

per annum.

R. BASANT,
JUDGE.

P.R. RAMACHANDRA MENON,
JUDGE.

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