IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2392 of 2008()
1. VILASINI.R.NAIR, W/O.RAJASEKHARAN NAIR,
... Petitioner
Vs
1. SUNIL ANTONY, KOCHAPPILLY HOUSE,
... Respondent
2. JOSEPH, S/O.KUNJU,
3. THE ORIENTAL INSURANCE CO. LTD,
For Petitioner :SRI.K.JANARDHANAN
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :19/01/2010
O R D E R
R.BASANT & M.C. HARI RANI,JJ
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M.A.C.A. NO. 2392 OF 2008-F
============================
DATED THIS THE 19TH DAY OF JANUARY 2010
JUDGMENT
Basant,J.
Claimant is the appellant. She suffered injuries in a motor
accident which took place on 03/03/2001. She was a Mahila
Pradhan Agent. She claimed that she was earning a monthly
income of Rs.3,500/-. She had suffered serious injuries. She was
an in-patient for a period of 51 days. Her permanent disability
was got assessed by the tribunal by referring her to a medical
board. The medical board reported the extent of physical
disability to be 75% as per Ext.A9. A total amount of Rs.9.14
lakhs was claimed as compensation. The tribunal, on an
evaluation of the materials available before it, came to the
conclusion that the claimant is entitled for an amount of
Rs.2,88,000/- as compensation as per the details shown below:
Rs.
M.A.C.A. No.2392/2008 2
1. Transportation, hospitalisation
extra nourishment & damage 6,000/-
to clothings
2. Attendant expenses 8,500/-
3. Medical expenses 50,000/-
4. Loss of earnings (Rs.2,500/- x 13) 32,500/-
5. Pain and suffering 30,000/-
6. For discomforts & inconvenience 15,000/-
7. For functional disability 1,46,000/-
(basis not discernible)
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Total 2,88,000/-
======
2. The said amount was directed to be paid along with
interest and cost. The appellant claims to be aggrieved by the
impugned award. What is the grievance? Called upon to explain
the grounds on which the challenge is mounted, the learned
counsel for the appellant assails the impugned award on various
grounds.
3. First of all it is contended that the monthly income
reckoned by the tribunal is too low. Rs.3,500/- was the monthly
income claimed. The tribunal accepted Rs.2,500/-. She claims to
M.A.C.A. No.2392/2008 3
be a Mahila Pradhan Agent. Better and authentic evidence
about the quantum of average monthly earnings is not made
available to court. In these circumstances, the tribunal drew the
presumption of prudence that the claimant must have been
earning atleast an amount of Rs.2,500/- p.m. We find no merit in
the challenge raised by the learned counsel for the appellant.
4. The basis on which compensation is awarded under
the head of functional disability is not discernible. If Rs.2,500/-
is reckoned as the monthly income and 50% is reckoned as the
extent of reduction in earning capacity, it follows that the
multiplier adopted by the tribunal is marginally less than 10.
Following Sarla Verma v. D.T.C [(2009)6 SCC 121], the
multiplier of 14 is liable to be taken as the claimant belongs to
the age group 41-45 years. Her date of birth being 19/12/1959
and the accident having taken place on 03/03/2001 we agree
with the learned counsel for the appellant that 14 must have
been reckoned as the multiplier by the tribunal. We agree with
the learned counsel that 14 must have been reckoned as the
multiplier by the Tribunal.
M.A.C.A. No.2392/2008 4
5. The counsel then contends that the Medical Board to
whom the Tribunal had referred the claimant had assessed the
extent of physical disability to be 75%. But the counsel argues
that the Tribunal surprisingly reckoned the reduction of earing
capacity only at 50%. This is not justified, contends the counsel.
The nature of the employment of the appellant as Mahila
Pradhan Agent is such that physical movement to the prospective
investors is essential. The Tribunal accepted that the appellant
is unable to move about except in crutches or wheel chair. In
these circumstances, the physical disability assessed by the
Medical Board must have been accepted as the percentage of
reduction earning capacity also, contends the counsel.
6. We have no quarrel with the proposition that physical
disability cannot blindly be imported and accepted as the extent
of reduction in earning capacity. The impact which physical
disability causes on the earning capacity will have zealously
considered and a satisfactory finding has to be entered in each
case. This is a case where the employment of the appellant
requires and necessitates physical movement. 75% reduction in
physical faculties is assessed by the Medial Board and accepted
M.A.C.A. No.2392/2008 5
by the Tribunal. We are, in these circumstances of the opinion
that there was no justification in the facts of this case to reckon
only 50% as the reduction earning capacity when the physical
disability is competently and authentically assessed to be 75%.
We take the view that 75% must have been reckoned as the
extent of reduction earning capacity in the instant case.
7. The learned counsel then contends that a just and
reasonable compensation has not been awarded for the loss of
amenities – described as discomfort and inconvenience by the
Tribunal. Physical disability suffered by an individual has two
pronged reflections on the life of such a person. It may reduce
the earning capacity and it would impair the quality of
enjoyment of life. With 75% disability suffered and her
movements having been affected considerably, such disability
will have material impact on the quality of enjoyment of life of
the claimant who was aged only about 41 years on the date of
the accident. We agree with the learned counsel for the
appellant that award of an amount of Rs.15,000/-only for
compensation for loss of amenities is too low. In the facts and
circumstances of this case, we are not satisfied that the amounts
M.A.C.A. No.2392/2008 6
awarded under other heads warrant or require
modification/upward revision.
8. The above discussions lead us to the conclusion that the
claimant is entitled for the following further amounts as
compensation in addition to the amounts awarded by the
Tribunal as per the details shown below:
1)Reduction in Earning capacity
(2500 x 12 x 75/100 x 14) : Rs.3,15,000 minus
Rs.1,46,000 = Rs.1,69,000/-
2) Loss of amenities :Rs.30,000 minus
Rs.15,000 = Rs. 15,000/-
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Total = Rs.1,84,000/-
===============
9. In the result:
a) this appeal is allowed in part.
b)The appellant is found entitled to a further amount
of Rs.1,84,000/-(Rupees one lakh eighty four thousand
only) in addition to the amounts awarded by the
Tribunal.
c)Needless to say the interest shall be payable on the
M.A.C.A. No.2392/2008 7
entire amount of compensation from the date of the
accident to the date of payment at the rates directed
by the Tribunal.
(d) All other directions of the Tribunal are upheld. The
Tribunal shall issue fresh directions regarding
deposit/release of the compensation.
R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.