High Court Kerala High Court

Sudheesh Raj vs George on 19 February, 2009

Kerala High Court
Sudheesh Raj vs George on 19 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1457 of 2005()


1. SUDHEESH RAJ, S/O.SREEDHARAN,
                      ...  Petitioner

                        Vs



1. GEORGE, S/O.INASU, KOKKAT HOUSE,
                       ...       Respondent

2. UNITED INDIA INSURANCE CO. LIMITED,

3. GINSON, KOKKAT HOUSE, RAPPAL, PUDUKKAD

                For Petitioner  :SRI.P.V.CHANDRA MOHAN

                For Respondent  :SRI.DILIP J. AKKARA

The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR

 Dated :19/02/2009

 O R D E R
                            R.BASANT &
                     C.T.RAVIKUMAR, JJ.
               * * * * * * * * * * * * * * * * * *
                     M.A.C.A.No.1457 of 2005
                    ----------------------------------------
            Dated this the 19th day of 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.4,26,000/- as compensation for

personal injuries suffered by him as a result of the accident

which took place on 29/11/1999. The Tribunal awarded only an

amount of Rs.1,48,000/-.

2. The appellant was aged 35 years. He was allegedly

working as a sales representative of a tobacco wholesale

business man. He was allegedly earning an income of Rs.4165/-

per mensum as per Ext.A13 certificate issued by the employer.

He had suffered multiple fracture. Fracture of tibia and fibula,

dislocation and fracture of left scapula bone, fracture of radius

right, fracture of ulna right are major injuries suffered. He was

an in-patient of the Medical College Hospital for three spells for

a total period of 90 days. His disability was assessed by the

Doctor in Ext.A12 disability certificate at 30%. The appellant

examined himself as PW1. Exts.A1 to A16 were marked on his

side. The Tribunal, on an anxious consideration of all the

M.A.C.A.No.1457/05 2

relevant inputs came to the conclusion that the appellant is

entitled to a total amount of Rs.1,48,000/- as per the details

shown below:

      Loss of earnings                Rs.20,000/-
      (Rs.2,500 x 8)

      Medical and Miscellaneous
      expenses (against bills         Rs.12,000/-
      produced)

      Pain and suffering              Rs.12,000/-

      Loss of amenities               Rs.8,000/-

      Loss of earning capacity
      consequent to disability        Rs.96,000/-
      (2,500 x 12 x 16 x 20/100)

                      Total           Rs.1,48,000/-


3. The appellant claims to be aggrieved by the quantum

of compensation awarded. Called upon to explain the precise

nature of challenge which the learned counsel for the appellant

wants to mount against the impugned award, the learned

counsel for the appellant first of all contends that the monthly

income reckoned by the Tribunal at Rs.2,500/- is not justified.

There was no reason to reject Ext.A13 salary certificate which

shows the income to be Rs.4160/- per mensum, contends the

counsel. Author of Ext.A13 has not been examined. According

M.A.C.A.No.1457/05 3

to us, the Tribunal did not commit any error warranting

appellate interference for not swallowing Ext.A13 which was not

strictly proved. Reckoning the monthly income of Rs.2,500/- per

mensum, does not, in these circumstances, appear to be

unreasonable or unjust.

4. The learned counsel for the appellant then contends

that, at any rate, the acceptance of only 20% as the physical

disability is not justified. We have been taken through the

disability certificate Ext.A12 in detail. Instances of impairment

of physical faculties is narrated in detail on 15 specific aspects in

Ext.A12. Of course, the Tribunal was correct in taking note of

the fact that the appellant had not chosen to examine the author

of Ext.A12. But all the same, the Tribunal was satisfied that

there was disability. We have no semblance of doubt in our mind

that the appellant has suffered disability. The short question

that arises in our mind is whether the Tribunal is justified in

reducing the percentage of disability fixed by the doctor at 30%

to 20%. To ascertain the quantum of compensation payable for

reduction in earning capacity, physical disability can only be an

indicator. We are satisfied, considering the nature of the

disabilities narrated that the percentage of disability can safely

M.A.C.A.No.1457/05 4

be reckoned at 25%. The appellant will consequently be entitled

for a further amount of Rs.24,000/- i.e. (2,500 x 12 x 16 x

25/100 minus 96,000).

5. The learned counsel for the appellant then submits

that the compensation awarded for loss of amenities at

Rs.8,000/- is totally insufficient. The physical disability suffered

by the appellant must necessarily have a reflection on the quality

of enjoyment of life by the appellant for the reminder of his life.

The Tribunal was not realistic and reasonable in awarding only

an amount of Rs.8,000/- as compensation under this head,

contends the learned counsel for the appellant. In the

circumstances of this case, considering the age of the appellant

at the time of the accident as also the nature of the disability

narrated in Ext.A12, we are inclined to agree with the learned

counsel for the appellant. We are satisfied that award of an

amount of Rs.20,000/- under the head of loss of amenities would

be totally justified.

6. The above discussions lead us to the conclusion that

the appellant is entitled for a further amount of Rs.12,000/-

under the head of loss of amenities and a further amount of

Rs.24,000/- under the head of reduction in earning capacity

M.A.C.A.No.1457/05 5

consequent to disability as detailed above.

7. The learned counsel for the appellant contends that

interest has been awarded only @ 6% per annum. It is submitted

that interest must have been awarded at least @ 7.5% per

annum as already accepted in several binding precedents. We

agree with the learned counsel for the appellant.


     8.    In the result,

     a)    This M.A.C.A is allowed.

     b)    The impugned award is modified.

     c)    It is directed that the appellant shall be entitled to a

further amount of Rs.36,000/- (Rupees thirty six thousand only)

along with interest on the entire amount of compensation @7.5%

per annum from the date of the petition. Directions regarding

cost and disbursement of the amount are also upheld.

(R.BASANT, JUDGE)

(C.T.RAVIKUMAR, JUDGE)
jsr

M.A.C.A.No.1457/05 6

M.A.C.A.No.1457/05 7

R.BASANT &C.T.RAVIKUMAR, JJ.

.No. of 200

ORDER/JUDGMENT

06/02/2009