Pallath Peru George vs N.K. Rahoof, N.K. Ashraf and New India Assurance Company Ltd.

K. Ramakrishnan, J.—The claimant in O.P. (MV) No. 1396/2001 on the file of the Motor Accidents Claims Tribunal, Thalassery, 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 2nd respondent, owned by the 1st respondent and insured with the 3rd respondent. After considering the evidence on record, the Tribunal found that the accident occurred due to the negligent driving of the vehicle by the 2nd respondent and awarded a total compensation of Rs. 50,100/- on various heads as follows:

Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has come before this Court with the above appeal.

Heard counsel for the appellant and counsel for the Insurance Company.

Counsel for the appellant submitted that the appellant was aged 49 years and a carpenter by profession and getting Rs. 200/- per day as income. But the Tribunal has arbitrarily fixed the income as Rs. 2,000/-, which is very low. Further, he was treated as in-patient for 98 days in two hospitals, but Tribunal has taken only 11 days'' hospitalisation for the purpose of awarding compensation under the head ''loss of earning'' as well as ''bystander''s expenses'', which is also not correct. The doctor who issued the disability certificate has certified that he is having 10% functional disability and 4% whole body disability, but the Tribunal has reduced it to 3% for the purpose of assessing compensation under the head ''loss of earning capacity'', which is also not correct. Further, no amount was awarded under the heads ''loss of amenities in life and future treatment expenses'' though the doctor has deposed that he requires another surgery for removal of implants. According to the counsel for the appellant, the appellant is entitled to get enhancement on all heads.

On the other hand, the learned counsel for the Insurance Company submitted that the Tribunal has rightly considered that he is having only 3% disability and though the certificate was issued by a private doctor, awarded reasonable amount under the head ''loss of earning capacity''. The learned counsel also submitted that the Tribunal went wrong in taking 15 as the multiplier as, as per the decision in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the proper multiplier applicable to the age group of 49 years is 13 and not 15. So, according to the learned counsel, the total compensation awarded is just and proper and no interference is called at the hands of this Court.

We have considered the rival contentions of both parties in detail.

The case of the appellant was that he was working as a carpenter and getting Rs. 200/- per day and in order to prove the same, he had examined PW 2 and produced Ext. A8 salary certificate given by PW 2. He has admitted that there are other documents to show that he was working under him and also the wages given to him. But, those documents were not produced before the Tribunal. So, under the circumstances, the Tribunal was perfectly justified in not relying on those documents to come to the conclusion that the appellant was getting daily income of Rs. 200/- as claimed by him. But, considering the fact that he was a carpenter by profession and aged 49 years as stated in the claim petition, he may be getting at least Rs. 2500/- per month at the time of accident which occurred on 30.7.2001. So, we are re-fixing the monthly income of the appellant as Rs. 2,500/-.

It is seen from the records that he was earlier treated for 11 days at a hospital at Kannur, where the accident occurred and thereafter he was admitted in Don Bosco Hospital, North Paravur, Ernakulam, and treated there from 3.10.2001 to 29.12.20101 as an in-patient and thereafter he continued ayurvedic treatment. But this period has not been taken into consideration by the Tribunal for the purpose of assessing compensation under the head ''loss of earning'' during the period of treatment or for awarding compensation under the head ''bystander''s expenses''. No reason was also given by the Tribunal for the same. So, under the circumstances, we feel that considering the nature of injury sustained and the period treatment undergone, he could not have attended the work for four months. So, taking his monthly income as Rs. 2,500/- and the period of treatment as four months, he is entitled to get Rs. 10,000/- under the head ''loss of earning'' during the period of treatment instead of Rs. 6,000/- awarded by the Tribunal and we award this amount under that head.

The doctor who issued Ext. A7 disability certificate, was examined as PW 3 and he gave evidence that on account of the injury sustained by him, he is having 4% whole body disability. The reason given by the Tribunal for re-fixing the same to 3% appears to be not convincing. There is shortening of 1 inch and as a carpenter, this may have some impact on his earning capacity as well. So, we are inclined to take 4% whole body disability certified by the doctor for considering the question of compensation under the head ''loss of earning capacity.'' But, there is some force in the submission made by the learned counsel for the Insurance Company regarding the multiplier adopted. As per the decision cited supra, the correct multiplier for the age as the appellant was, is 13 and not 15 as taken by the Tribunal. If a re-calculation is made on the basis of the above inputs, the appellant is entitled to Rs. 15,600/- (2500 x 12 x 13 x 4%), instead of Rs. 10,800/- awarded by the Tribunal under the head ''loss of earning capacity'' and we award this amount under that head.

Considering the fact that he suffered severe fracture and treated as in-patient for 98 days in two hospitals, the amount of Rs. 8,000/- awarded by the Tribunal under the head ''pain and suffering'' is also very low and we enhance the same to Rs. 15,000/-. Similarly, the Tribunal has awarded only Rs. 1,100/- under the head ''bystander''s expenses'', taking the period of in-patient as 11 days. Since the appellant was in-patient for 98 days, we award Rs. 9,800/- under that head instead of Rs. 1,100/-. No amount was awarded under the head ''loss of amenities in life''. Ext. A7 certificate issued by PW 3 doctor shows that he is having 10% permanent disability on account of shortening of one inch. This may have some impact on his day-to-day life. So, we award Rs. 15,000/- under the head ''loss of amenities in life''. PW 3 doctor has deposed that he will have to undergo another operation for removal of implants for which he will have to incur some amount for future treatment expenses. But, no amount was awarded by the Tribunal under that head. So, we are inclined to award Rs. 10,000/- under that head. We are not inclined to enhance any amount under other heads as the amounts awarded under other heads appear to be just and proper.

In all, the appellant is entitled to get an additional compensation of Rs. 49,500/- over and above what has been awarded by the Tribunal, which the 3rd respondent Insurance Company is liable to pay interest at 9% per annum from the date of petition till payment on Rs. 39,500/-, (excluding Rs. 10,000/- awarded for future expenses.) 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.