Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE24H DAY OF OCTOBER20132ND KARTHIKA, 1935 MACA.No. 1518 of 2010 (C) -------------------------- AGAINST THE AWARD IN OPMV2332006 of MACT,KALPETTA, DATED1603-2010. APPELLANT(S)/PETITIONER: ------------------------ RAJEEV, S/O.BHASKARAN, NARIKUZHIL HOUSE, CHATHAMANGALAMKUNNU MANALVAHYAL P.O., IRULAM VILLAGE, S.BATHERY TALUK. BY ADV. SRI.S.M.PRASANTH RESPONDENT(S): RESPONDENTS ---------------------------- 1. PRADEEPKUMAR, S/O.VASU, AGED34YEARS, PUTHENPURAYIL HOUSE, KELAKKAVALA CHEEYAMPAM P.O., PULPALLY AMSOM DESOM-673 579.
2. THE MANAGER, UNITED INDIAN INSURANCE COMPANY LTD., BRANCH OFFICE, RAWTHER BUILDING NEAR PINANGODE ROAD JUNCTION, MAIN ROAD, KALPETTA WAYANAD DISTRICT-673 121. R2 BY ADV. SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON2410-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan & K. Ramakrishnan, JJ.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 1518 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 24th day of October, 2013.
JUDGMENT
Ramakrishnan, J.
The claimant in O.P.(MV) No. 233/2006 on the file of the Motor Accidents Claims Tribunal, Kalpetta, 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 owned and driven by the 1st respondent and insured with the 2nd respondent. After considering the evidence on record, Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 1st respondent and awarded a total compensation of Rs.29,300/- on various heads as follows: Loss of earnings for two months Rs. 5,000/- Transport to hospital Rs. 500/- Extra nourishment Rs. 5,00/- Damage to clothing and articles Rs. 500/- Compensation for pain & suffering Rs. 12,000/- Compensation for permanent disability Rs. 10,800/- Total Rs. 29,300/- 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 M.A.C.A. No. 1518 of 2010 -:
2. :- was working as a bill collector in a chit company and also doing agricultural operation and getting Rs. 5,000/- per month. But the Tribunal has arbitrarily fixed the monthly income as Rs. 2,500/-. Further, in the disability certificate, the doctor has assessed 18% disability, but the Tribunal has taken only 2% disability. Though the appellant filed an application to refer the appellant to medical board, that application was dismissed by the Tribunal. So, the Tribunal ought to have either accepted the disability mentioned in the disability certificate produced or should have sent him to the medical board and not justified in arbitrarily fixing a disability of 2%. Further, no amount was awarded under the head `loss of amenities in life'. The amount awarded under the head `pain and suffering' is also on the lower side. So, according to the counsel for the appellant, the appellant is entitled to get enhancement on all heads.
4. On the other hand, counsel for the Insurance Company submitted that the appellant was aged 29 years and as per the decision reported in Sarla Verma v. Delhi Transport Corporation, 2010(2) KLT802 the proper multiplier applicable to such age group is 17 and not 18. Further, the Tribunal has considered the present condition of the appellant who was present in court and rightly adopted 2% as occupational disability and the total amount awarded is just and proper and no interference is called for at the hands of this Court. M.A.C.A. No. 1518 of 2010 -:
3. :- 5. We have considered the rival contentions of both parties in detail.
6. The appellant sustained a fracture of right little finger, swelling 2nd and 3rd fingers of right hand, fracture phalanx 2nd finger, abrasion right foot and dorsum and right little toe and abrasion on left upper area above elbow. Ext. A6 disability certificate shows that he had partial ankylosis of right sided interphalangeal joints and the Tribunal has found that he is unable to hold his middle finger and he is having difficulty to take food and to write. So, the Tribunal ought to have allowed the application to send the appellant to the medical board for assessment of disability, if the Tribunal decided not to rely on Ext. A6. But, considering the nature of disability as detailed in Ext. A6 and also noted by the Tribunal, we feel that 2% disability taken by the Tribunal appears to be on the lower side and we re-fix the same as 8% for the purpose of assessing compensation under the head `loss of earning capacity.' It is true that no document has been produced to prove the income of the appellant. But considering the fact that he was aged 29 years and the accident occurred in the middle of 2004, we feel that he will be getting at least Rs. 3,000/- per month and we re-fix the same as Rs. 3,000/-. There is some force in the submission made by the counsel for the Insurance Company regarding the multiplier taken. As per Sarle Verma's case (supra), the proper multiplier M.A.C.A. No. 1518 of 2010 -:
4. :- applicable to the age group of 29, as the appellant was at the time of accident, is 17 and not 18. If a recalculation is made on that basis, the appellant will be entitled to get Rs.48,960/- (3000 x 12 x 17 x 8%) instead of Rs. 10,800/- awarded by the Tribunal under the head `loss of earning capacity'. Thus, he will be getting an additional amount of Rs. 38,160/- under that head.
7. Considering the nature of injuries sustained, he will not be able to work for at least three months. So, we are enhancing the amount under the head `loss of earning' to Rs. 9,000/- from Rs. 5,000/- awarded by the Tribunal. We are also inclined to enhance the amount awarded under the head `pain and suffering' to Rs.15,000/- from Rs. 12,000/-. No amount was awarded under the head `loss of amenities in life'. The disability certificate shows that he suffered 18% disability and the nature of disability suffered by the appellant was also noted by the Tribunal as well. He was aged 29 years only at the time of the accident. He will have to live with this disability for the remaining period of his life. This may cause some impact on his personal life as well. So, we award an amount of Rs.15,000/- under the head `loss of amenities in life. We are not inclined to enhance any amount under other heads.
8. So, the appellant will be entitled to an additional compensation of Rs. 60,160/- over and above what has been awarded by the Tribunal, which the 2nd respondent M.A.C.A. No. 1518 of 2010 -:
5. :- Insurance Company is liable to pay with 9% interest from the date of the petition till date of payment. Two months' time is granted to the Insurance Company to deposit the above amount. 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.