Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE22D DAY OF OCTOBER201330TH ASWINA, 1935 MACA.No. 2302 of 2007 ----------------------- AGAINST THE AWARD IN OPMV3762000 of MACT ALAPPUZHA, DATED1702-2004. APPELLANT(S)/PETITIONER: ------------------------- SANTHOSH, S/O.S.DIVAKARAN, CHAMAPARAMBU, VANDANAM, ALAPPUZHA. BY ADV. SRI.A.C.DEVY RESPONDENT(S): RESPONDENTS ---------------------------- 1. ABDUL SAMAD, PADINJAREKARUKAYIL HOUSE, NEERKUNNAM, VANDANAM, ALAPPUZHA.
2. ORIENTAL INSURANCE CO.LTD., REP. BY DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVALLA. R1 BY ADV. SRI.C.A.CHACKO R2 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON2210-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan & K. Ramakrishnan, JJ.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 2302 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 22nd day of October, 2013.
JUDGMENT
Ramakrishnan, J.
The claimant in O.P.(MV) No. 376/2000 on the file of the Motor Accidents Claims Tribunal, Alappuzha, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities sustained by him in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle by the driver of the lorry insured with the 2nd respondent and owned by the 1st respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the lorry driver and awarded a total compensation of Rs.38,000/- on various heads as follows: Loss of earning1 Rs. 10,000/- Treatment, transport and other expenses Rs. 4,000/- Pain and suffering Rs. 6,000/- Partial disability and loss of earning power Rs. 18,000/- Total Rs. 38,000/- Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has come before this Court with the above appeal.
2. Heard counsel for the appellant and counsel for the Insurance Company.
3. Counsel for the appellant submitted that the appellant was an autorickshaw driver getting Rs. 3,000/- per month at the time of the accident. But the Tribunal has arbitrarily fixed M.A.C.A. No. 2302 of 2007 -:
2. :- Rs.2,000/- per month as his income. He had suffered 20% disability. That was not taken into consideration by the Tribunal and the amounts awarded under the heads `loss of earning power, pain and suffering' and other heads are very low. So, he is entitled to enhancement of compensation on all heads.
4. On the other hand, counsel for the Insurance Company submitted that considering the nature of injuries sustained, the Tribunal was perfectly justified in not taking disability for the propose of assessing loss of earning capacity and the total amount awarded is just and proper and no interference is called for at the hands of this Court.
5. We have considered the contentions of both parties in detail.
6. It is an admitted fact that the appellant met with an accident and sustained injuries in the accident. The wound certificate shows that he sustained the following injuries: "1. Lacerated wound . partial region 2 x 0.5 x 0.5 cm.
2. Lacerated wound . pinna 1 x 0.25 x 0.25 cm and 1 x 0.5 x 0.5 cm.
3. Contused abrasion . hypo chondrum. Spine compression fracture L1 vertibrea." Though the Tribunal has not fixed the monthly income of the appellant, on going through the judgment, it appears that the present income stated to have been earned by him as working in a stationary shop was taken as the monthly M.A.C.A. No. 2302 of 2007 -:
3. :- income and on that basis Rs. 10,000/- was awarded under the head `loss of earning'. That shows that the Tribunal has taken 5 months as the period for awarding compensation under the head `loss of earning'. This amount appears to be just and proper and we are not inclined to enhance the monthly income or compensation under the head `loss of earning'.
7. The Tribunal has awarded only Rs. 4,000/- under the heads treatment, medicine, transportation and other expenses. In fact, the appellant had produced medical bills of Rs. 3,815/-. But the Tribunal has not taken all these bills only on the ground that all the bills were not in the name of the appellant but it was in the name of different persons. This can be possible, when a person is treated in the hospital and medicines are purchased by bystanders, the possibility of getting the name of the bystander in the medical bills cannot be ruled out. So, considering these facts, we feel that the consolidated amount awarded under the head `treatment, medicine, transport and other expenses, appears to be on the lower side and we treat this amount towards treatment expenses and award Rs. 1,000/- under the head `transport to the hospital', Rs. 500/- for bystander's expenses, Rs. 1,000/- under the head `extra nourishment' and Rs. 500/- under the head `damage to clothing articles'.
8. The appellant has produced Ext. A7 disability certificate in which it is stated that he has suffered 20% disability, which was not relied upon by the Tribunal M.A.C.A. No. 2302 of 2007 -:
4. :- because that was issued by a doctor who had not treated him and the doctor was not examined. But, that alone is not sufficient to discard the disability certificate in toto. Further, he was examined as PW1 and he had stated that he had pain around his neck and back and has difficulty to lift weight. This was accepted by the Tribunal for awarding compensation under the heads `partial disability and loss of earning power.' If that be the case, we feel that the occupational disability can be taken as 10% for the purpose of assessing compensation under the head `loss of earning capacity.' He was aged 26 years at the time of the accident and taking 17 as the multiplier and monthly income as Rs.2,000/- and occupational disability as 10%, he will be entitled to Rs. 40,800/- under the head `loss of earning capacity' instead of Rs. 18,000/- awarded by the Tribunal. The appellant will be entitled to additional amount of Rs.22,800/- under this head.
9. The appellant has sustained fracture to his vertebra and he was treated as in-patient for 5 days and immobilized in plaster for some more days. He was advised bed rest with spinal jacket as well. Considering these aspects, the amount of Rs. 6,000/- awarded under the head `pain and suffering' appears to be on the lower side and we enhance the same to Rs. 15,000/-. No amount was awarded under the head `loss of amenities in life'. Considering the fact that he is having 20% disability and he was only 26 years at the time of the accident, he will have to live with this disability for the remaining period of his life and it will M.A.C.A. No. 2302 of 2007 -:
5. :- cause some impact on his personal life as well. So, we award Rs. 15,000/- under the head `loss of amenities in life'. We are not inclined to enhance any amount on the other heads. In all, the appellant will be entitled to get additional compensation of Rs. 49,800/- over and above what has been awarded by the Tribunal, which the 2nd respondent Insurance Company is directed to deposit with 9% interest per annum from the date of the petition till date of payment, excluding the period of 1004 days' delay, which was excluded for the purpose of interest on enhanced compensation at the time of condoning the delay as per order dated 30.03.2012. Two months' time is granted to the Insurance Company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, this appeal is disposed of. Sd/- S. Siri Jagan, Judge. Sd/- K. Ramakrishnan, Judge. Tds/ [True copy] P.S to Judge.