IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 670 of 2004()
1. U.V.THILAKAN, S/O.UMMAMPILLY VELAYUDHAN,
... Petitioner
Vs
1. LEELA RAM, M/S.TAMILNADU PACKAGING
... Respondent
2. NEW INDIA ASSURANCE CO.LTD., MADRAS ANNA
3. M.SIVAKUMAR, S/O.MARUDAI,
For Petitioner :SRI.P.V.CHANDRA MOHAN
For Respondent :SRI.A.C.DEVY
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :31/08/2010
O R D E R
R. BASANT & M.L.JOSEPH FRANCIS JJ.,
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M.A.C.A No.670 of 2004
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Dated this the 31st day of August, 2010.
JUDGMENT
Basant J.,
The claimant is the appellant. He has claimed compensation
for the loss suffered by him as a result of a road traffic accident
which took place on 3.4.1995. The claimant / appellant was driving
an Autorikshaw. He suffered serious injuries which obliged him to
remain as inpatient in the hospital for 22 days, out of which he was
in the ICU as a patient for 18 days. According to him he suffered
permanent disability. This disability in turn had affected the
quantum of enjoyment of life which had also reduced his earning
capacity.
2. The Tribunal awarded in favour of the appellant / claimant
on the question of negligence. The dispute is only regarding the
quantum of compensation payable. On the question of whether any
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disabilities had suffered by the appellant and the extent of
disability, there were disputes. Before this court, at the state of
hearing it was agreed that the appellant can be referred to Medical
Board. Accordingly he was referred to Medical Board and the
Superintendent of the Medical College Hospital, Thrissur formed a
Medical board constituting of 5 experts including experts of the
department of Neuro Surgical and Psychiatry. The Medical reports
submitted by the medical board is marked as Ext.X1, by mutual
consent. It is reported that the appellant has a total disability of
31.6%. The disability is neurological and psychiatric and no
surgical or orthopedic disability was found to be present.
3. The Tribunal had awarded a total amount of Rs.23,000/-
alongwith interest at the rate of 9% per annum as per the details
shown below:
1. Loss of earnings : Rs. 4,500/- (Rs.1,500 x 3)
2. Transport to hospital : Rs. 500/-
3. Medical expenses : Rs.12,000/- (medical bills produced)
4. Pain and sufferings : Rs. 3,000/-
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5. Loss of amenities : Rs. 3,000/-
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Total : Rs.23,000/-
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4. The learned counsel for the appellant submits that the
quantum of compensation awarded is comparatively lower than that
of loss of sufferings. Counsel contends that the monthly income of
the appellant reckoned by the Tribunal at Rs.1,500/- is too low. No
material had been produced before the Tribunal to hold that the
monthly income of the claimant, admittedly an autorikshaw driver
could be reckoned at Rs.1,500/- per month. In the totality of
circumstances, we are not persuaded to agree with the said amount
of monthly income paid as on 3.4.1994, the date of the accident
would in any way be inadequate so as to warrant interference.
5. 22 days as inpatient out of which 18 days in the ICU, but
in the loss of permanent disability that is now proved now to be
resulted would certainly have obliged the appellant to be without
work for a long period. Period of 3 months reckoned by the
Tribunal is inadequate, contends the learned counsel. We are
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satisfied that the period of inference of non employment can be
reckoned at 5 months.
6. It is next contended that the amount of Rs.12,000/-
awarded as medical expenses covers only the actual amount of the
bills. In fact the bill amount exceeds Rs.12,000/-, it is contended.
No amount has been awarded under hospital, extra nourishment,
clothing, by standers expenses etc., argues the learned counsel. It
cannot ideal to expect the claimant like the appellant to maintain
statutory vouchers to prove the medical expenses. Reasonable
inference has been proved. Taking note of the nature of the
injuries, period of hospitalization, the fact that he was in the ICU
for 18 days, and other relevant circumstances, we are persuaded to
agree that the amount of Rs.12,000/- awarded as medical expenses
against the actual bills produced is insufficient. We are satisfied
that under hospital and medical and miscellaneous expenses a total
amount of Rs.15,000/- can be awarded. (Rs.3,000/- more)
7. For pain & sufferings only an amount of Rs.3,000/- has
been awarded. Considering the totally of the circumstances, we are
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satisfied that an amount of 7,500/- can be awarded under the head
of pain and suffering i.e, Rs.4,500/- more.
8. The report of Medical Board, Ext.X1 is accepted. The
claimant was aged about 30 years when the accident took place and
he suffered injuries. He will have to endeavour the effects of
injuries / disabilities for the rest of his life.
9. Considering the nature of the disabilities we find that a
higher amount of compensation can be awarded under the head of
loss of amenities. We note that the appellant is entitled to
Rs.10,000/- (Rs.7,000/- more under loss of amenities).
10. The learned counsel for the appellant has trained all his
guns on the omission of the Tribunal in award of amounts under the
head of loss of earning capacity. The nature of permanent disability
suffered though as the disability is not orthopedic or psychiatric
would certainly have resulted in reduction of earning capacity. The
Tribunal erred in not taking any such reduction in earning capacity
adopting multiplier – multiplicand method, the loss of
compensation for loss of earning capacity must be awarded, argues
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the learned counsel.
11. We are satisfied that disability to the tune of 31.6% has
resulted. Considering the nature of disabilities, we are satisfied
that the said physical disability have resulted in loss of earning
capacity to the same extent. We take note of the nature of the
employment of the appellant. As an autorikshaw driver, the
appellant is consequently entitled for compensation of reduction in
earning capacity adopting multiplier – multiplicand method. For
persons of age group 30-35, the second schedule of the Motor
Vehicles Act fixes 17 as the multiplier and the same can be
accepted in the case of the appellant.
12. Where no other contentions are raised on the basis of
above discussions, we hold that the appellant is entitled to get a
total amount of Rs.96,696/- as per the details given below:
Loss of earning capacity : Rs. 7,500/- (1,500 x 5)
Transport to hospital : Rs. 500/-
Medical & miscellaneous expenses : Rs. 15,000/-
Pain and sufferings : Rs. 3,000/-
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Loss of amenities : Rs.10,000/-
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13. Award of interest at 9% p.a. from the date of petition, we
hold is absolute and justified. No interference is the warranted in
that direction.
14. In the result, this appeal is allowed in part. Any
supersession of award passed by the Tribunal.
15. 2nd Respondent – New Indian Assurance Co. is directed to
pay the total amount of Rs.96,696/- to the appellant along with
interest at 9% from the date of petition till the date of payment.
Needless to say amount already been paid under the impugned
amount shall be given due credit.
R. BASANT, JUDGE
M. L. JOSEPH FRANCIS, JUDGE
dl/