IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 175 of 2001()
1. RAMAKRISHNAN
... Petitioner
Vs
1. SURESH
... Respondent
For Petitioner :SRI.P.G.PARAMESWARA PANICKER (SR.)
For Respondent :SRI.N.S.MOHAMMED USMAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :19/07/2007
O R D E R
J.B.KOSHY & K.P.BALACHANDRAN, JJ.
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M.F.A.175 OF 2001
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Dated 19th July, 2007
JUDGMENT
Koshy,J.
Appellant/petitioner met with a motor accident
while travelling as a passenger in a bus bearing registration
No.KL-8C/4334 driven by the fourth respondent when the bus was
hit by another bus bearing registration No.KER781 driven by
the first respondent. As a result of the accident, he
sustained serious injuries which resulted in amputation of the
right arm. The arm was dismembered and fell on the road.
The Tribunal found that the accident occurred due to the
negligence of the first respondent driver of the bus insured
by the third respondent insurance company. However, against a
claim of Rs.28,00,000/=, only Rs.2,96,830/= was awarded by the
Tribunal. Only quantum of compensation is disputed in this
appeal. Finding of negligence on the part of the first
respondent driver, coverage of insurance of the bus by the
third respondent etc. have become final. Hence, we are only
considering the question of quantum of compensation.
2. First question is regarding the income of the
appellant. Admittedly, appellant was an income tax payee. He
was employed as a Designer in a Textile Mill. He was the
MFA.175/2001 2
Executive Director and Chief Designer of a Textile Company
at Madras. Exts.A12 to A14 are the salary certificates
issued to the appellant. The above certificates show that
yearly income of the appellant was Rs.1,00,000/=. That
will show that his monthly income was more than Rs.8,000/=.
He produced Ext.A10 to A10(d) income tax returns from the
year 1994-95 onwards which show that the declared income
was Rs.80,000/= per year, Rs.90,000/= per year and
subsequently Rs.1,00,000/= per year. The Tribunal assumed
that after deducting personal expenses Rs.4,000/= will be
his income and then for the purpose of calculation of
compensation only Rs.2,250/= was taken. We are of the
opinion that the method adopted by the Tribunal is wholly
baseless. When a person was getting monthly income of
Rs.8,000/= and when he cannot do the work of a designer in
the textile mill and proved the income, the Tribunal ought
to have fixed a reasonable sum as monthly income. In any
event, after fixing Rs.4,000/= as monthly income after
deducting personal expenses, there is no reason for
reducing it further to Rs.2,250/=. The amount for personal
expenses is to be deducted only when compensation for death
is calculated. We are of the opinion that at least
Rs.4,000/= ought to have been taken for the purpose of
calculation of compensation.
MFA.175/2001 3
3. The second question is regarding the percentage
of disability. We have already seen that, at the time of
accident, his right hand was dismembered and fell on the
road. He was treated in Ganga Hospital, Coimbatore. The
discharge summary shows that there is total avulsion
amputation (R) upper limb at the level of shaft of humerus.
A contention was raised by the insurance company that
disability is only to the upper limb. But what the
certificate shows is that there was a permanent partial
disability to that limb and percentage of disability is 85.
However, because of that contention, he was referred to the
Medical Board for examination and the Medical Board of
District Hospital, Palakkad issued Ext.X1 certificate. The
above certificate shows the following percentage of
disability:
“He is orthopaedically handicapped
due to Above Elbow Amputation . and
his permanent disability is assessed
as 85% (Eighty five percent).”
It is the contention of the appellant that as a result of
the accident he lost his job and he cannot do any more work
as a designer. Because of the complete loss of limb, he
cannot even walk properly and in effect, as far as he is
MFA.175/2001 4
concerned, there is 100% disability. In this connection,
we also refer to Schedule-I to the Workmen’s Compensation
Act wherein for amputation through shoulder joint, loss of
earning capacity was fixed as 90%, for amputation below
shoulder with stump less than 20.32Cms. from tip of
acromion 80% and amputation form 20.32 Cms. from tip of
acromion to less than 11.43 Cms. below tip of olecranon
70%. We take 70% as the permanent disability of the
appellant, even though the amputation is from the upper
humerus. Appellant was aged 41. Tribunal has taken 15 as
the multiplier. A three member bench of the Supreme Court
in Smt.Supe Dei and others v. M/s.National Insurance
Comapnay Ltd. and another (JT 2002 (Sippl.1) SC 451) held
that compensation has to be calculated taking guidance from
the second schedule of the Motor Vehicles Act even in
claims under Section 166 of the M.V.Act. Even though it is
contended that since the life expectancy of Indians has
increased, a higher multiplier should have been taken, we
see no ground to enhance the multiplier taken by the
Tribunal taking guidance from the second schedule.
If that be so, compensation payable will be Rs.4,000
x 12 x 15 x 70 = 5,04,000/=. Tribunal has granted
100
Rs.20,000/=for head injury, Rs.1,75,000/= for disability
MFA.175/2001 5
and loss of earning capacity and Rs.15,000/= for physical
disability. Thus, the total compensation granted for
disability, loss of earning capacity, injury etc. was
Rs.2,10,000/=. If that is deducted, balance compensation
payable will be Rs.2,94,000/=. It is contended that the
compensation granted for pain and suffering, loss of
amenities and treatment etc are very low, considering the
total compensation granted, we are not enhancing the
compensation granted under other heads. Thus, the
additional amount of Rs.2,94,000/= now awarded should be
deposited by the third respondent insurance company with 7%
interest from the date of application till its deposit. On
deposit of the amount, appellant is entitled to withdraw
the same.
The appeal is partly allowed.
J.B.KOSHY
JUDGE
K.P.BALACHANDRAN
JUDGE
tks
