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Ramakrishnan vs Suresh on 19 July, 2007

Kerala High Court
Ramakrishnan vs Suresh on 19 July, 2007
       

  

  

 
 
  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.
            -------------------------------------
                      M.F.A.175 OF 2001
            -------------------------------------
                    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

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