Santhosh vs M/S Oriental Insurance Co. Ltd
2021 Latest Caselaw 899 Ker

MACA.No.145 OF 2014


              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                       MACA.No.145 OF 2014(C)

   AGAINST THE AWARD IN OPMV 1387/2007 DATED 07-06-2013 OF MOTOR
               ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR


APPELLANT/PETITIONER IN OP (MV) 1387/07:

              SANTHOSH
              AGED 47 YEARS
              S/O THANKAPPAN, KARIVELIL HOUSE,
              KODUVAZHANGA, NEERIKODE

              BY ADVS.
              SRI.REJI GEORGE
              SMT.ANUPAMA JOHNY
              SRI.BINOY DAVIS

RESPONDENT/RESPONDENT NO. 3 OP(MV)1387/07:

              M/S ORIENTAL INSURANCE CO. LTD.
              MANAPPAT BUILDING, NORTH NADA, KODUNGALLOR P.O,
              680664

              R1 BY ADV. SRI.A.R.GEORGE

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.145 OF 2014                  2




                                JUDGMENT

Dated this the 11th day of January 2021

This appeal was filed by the injured/petitioner in OPMV

1387/2007 on file of Motor Accident Case Tribunal, Perumbavoor,

challenging the award and demanding enhancement of

compensation.

2. He claims to be a tailor, earning a monthly salary

of Rs. 4,000/-. Consequent upon the accident, he sustained

fractures and according to the medical records, he sustained 10%

the permanent disability. According to the learned Counsel for the

appellant, the amount estimated towards loss of earning capacity

on account of permanent disability as well as the monthly income

relied on by the tribunal is unreasonable.

3. Heard. The learned Counsel for the appellant as

well as the respondent insurer.

4. It is true the permanent disability assessed was

10% as per the medical certificate. But the court below was of

opinion that the disability did not substantially affect the

petitioner's earning capacity substantially and accordingly, it was

limited to 5%. Even though, the learned Counsel for the appellant

contended that the the petitioner is a tailor by profession, no

evidence was produced in this respect. However, on reappreciating

the facts on record, I think it is only fair that the occupational

disability approved by the tribunal is modified to 7%. So, I also

consider that Rs. 3,500/- taken as notional income is on the lower

side, and in the facts of the case Rs. 4,000/- is fixed as the

notional monthly income of the appellant.

5. Applying the arithmetical formula as below a sum

of Rs. 47,040/- is awarded to the appellant under the head of the

loss of earning capacity due to permanent disability.

4,000 x 12 x 14 (multiplier)x 7 __________________________________

=47,040/-

6. The actual loss of earning estimated on the basis of

monthly income of Rs. 4,000/- will rise to Rs. 12,000/- from

Rs. 10,500/- already fixed by the learned tribunal. There is no need

for modifying the compensation for claims made under transport

expense, extra nourishment, damage to clothes, attendant and

medical expenses.

7. Considering the facts involved, I am of the opinion

that the pain and suffering ought to be modified from Rs. 20,000/-

to Rs. 25,000/- and like wise, loss of amenities also from 12,000/-

to 25,000/-.

8. As per the modified award, the appellant will be

entitled to total compensation of Rs. 1,54,355/- under the

following heads as per the table below:

Sl. No.     Head of claim                              Amount awarded
                                                          (Rs.)
      1     Loss of earnings                                    12,000/-
      2     Partial loss of earnings                              Nil
      3     Transport to hospital                                 1,000/-
      4     Extra nourishment                                     2,250/-
      5     Damage to clothes etc.                                 500/-
      6     Attendance expenses                                   3,150/-
      7     Medical expenses                                    38,415/-
      8     Pain & suffering                                    25,000/-
      9     Loss of amenities                                   25,000/-
      10    Loss of earning capacity on account                 47,040/-
            of disability
      11    Disfiguration                                          Nil
                                            Total           1,54,355/-

In the result, the appeal is allowed modifying the ward

and granting additional compensation for an amount of

Rs. 37,140/-with 8% interest per annum from the date of the

original petition till realisation. The respondent, Insurance

Company shall satisfy the award within a period of one month from

the date of receipt of a certified copy of this judgment. No costs.

All pending interlocutory applications will stand closed.

Sd/-

                                         T.V.ANILKUMAR
                                             JUDGE



SMF/11.01                   //TRUE COPY//           PA TO JUDGE