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RAMAKRISHNAN versus SURESH

High Court of Kerala

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RAMAKRISHNAN v. SURESH - MFA No. 175 of 2001 [2007] RD-KL 13542 (19 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 175 of 2001()

1. RAMAKRISHNAN
... Petitioner

Vs

1. SURESH
... Respondent

For Petitioner :SRI.P.G.PARAMESWARA PANICKER (SR.)

For Respondent :SRI.N.S.MOHAMMED USMAN

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice K.P.BALACHANDRAN

Dated :19/07/2007

O R D E R

J.B.KOSHY & K.P.BALACHANDRAN, JJ.

M.F.A.175 OF 2001 Dated 19th July, 2007

JUDGMENT

Koshy,J.

Appellant/petitioner met with a motor accident while travelling as a passenger in a bus bearing registration No.KL-8C/4334 driven by the fourth respondent when the bus was hit by another bus bearing registration No.KER781 driven by the first respondent. As a result of the accident, he sustained serious injuries which resulted in amputation of the right arm. The arm was dismembered and fell on the road. The Tribunal found that the accident occurred due to the negligence of the first respondent driver of the bus insured by the third respondent insurance company. However, against a claim of Rs.28,00,000/=, only Rs.2,96,830/= was awarded by the Tribunal. Only quantum of compensation is disputed in this appeal. Finding of negligence on the part of the first respondent driver, coverage of insurance of the bus by the third respondent etc. have become final. Hence, we are only considering the question of quantum of compensation.

2. First question is regarding the income of the appellant. Admittedly, appellant was an income tax payee. He was employed as a Designer in a Textile Mill. He was the MFA.175/2001 2 Executive Director and Chief Designer of a Textile Company at Madras. Exts.A12 to A14 are the salary certificates issued to the appellant. The above certificates show that yearly income of the appellant was Rs.1,00,000/=. That will show that his monthly income was more than Rs.8,000/=. He produced Ext.A10 to A10(d) income tax returns from the year 1994-95 onwards which show that the declared income was Rs.80,000/= per year, Rs.90,000/= per year and subsequently Rs.1,00,000/= per year. The Tribunal assumed that after deducting personal expenses Rs.4,000/= will be his income and then for the purpose of calculation of compensation only Rs.2,250/= was taken. We are of the opinion that the method adopted by the Tribunal is wholly baseless. When a person was getting monthly income of Rs.8,000/= and when he cannot do the work of a designer in the textile mill and proved the income, the Tribunal ought to have fixed a reasonable sum as monthly income. In any event, after fixing Rs.4,000/= as monthly income after deducting personal expenses, there is no reason for reducing it further to Rs.2,250/=. The amount for personal expenses is to be deducted only when compensation for death is calculated. We are of the opinion that at least Rs.4,000/= ought to have been taken for the purpose of calculation of compensation. MFA.175/2001 3

3. The second question is regarding the percentage of disability. We have already seen that, at the time of accident, his right hand was dismembered and fell on the road. He was treated in Ganga Hospital, Coimbatore. The discharge summary shows that there is total avulsion amputation (R) upper limb at the level of shaft of humerus. A contention was raised by the insurance company that disability is only to the upper limb. But what the certificate shows is that there was a permanent partial disability to that limb and percentage of disability is 85. However, because of that contention, he was referred to the Medical Board for examination and the Medical Board of District Hospital, Palakkad issued Ext.X1 certificate. The above certificate shows the following percentage of disability:

"He is orthopaedically handicapped due to Above Elbow Amputation . and his permanent disability is assessed as 85% (Eighty five percent)." It is the contention of the appellant that as a result of the accident he lost his job and he cannot do any more work as a designer. Because of the complete loss of limb, he cannot even walk properly and in effect, as far as he is MFA.175/2001 4 concerned, there is 100% disability. In this connection, we also refer to Schedule-I to the Workmen's Compensation Act wherein for amputation through shoulder joint, loss of earning capacity was fixed as 90%, for amputation below shoulder with stump less than 20.32Cms. from tip of acromion 80% and amputation form 20.32 Cms. from tip of acromion to less than 11.43 Cms. below tip of olecranon 70%. We take 70% as the permanent disability of the appellant, even though the amputation is from the upper humerus. Appellant was aged 41. Tribunal has taken 15 as the multiplier. A three member bench of the Supreme Court in Smt.Supe Dei and others v. M/s.National Insurance Comapnay Ltd. and another (JT 2002 (Sippl.1) SC 451) held that compensation has to be calculated taking guidance from the second schedule of the Motor Vehicles Act even in claims under Section 166 of the M.V.Act. Even though it is contended that since the life expectancy of Indians has increased, a higher multiplier should have been taken, we see no ground to enhance the multiplier taken by the Tribunal taking guidance from the second schedule. If that be so, compensation payable will be Rs.4,000 x 12 x 15 x 70 = 5,04,000/=. Tribunal has granted 100 Rs.20,000/=for head injury, Rs.1,75,000/= for disability MFA.175/2001 5 and loss of earning capacity and Rs.15,000/= for physical disability. Thus, the total compensation granted for disability, loss of earning capacity, injury etc. was Rs.2,10,000/=. If that is deducted, balance compensation payable will be Rs.2,94,000/=. It is contended that the compensation granted for pain and suffering, loss of amenities and treatment etc are very low, considering the total compensation granted, we are not enhancing the compensation granted under other heads. Thus, the additional amount of Rs.2,94,000/= now awarded should be deposited by the third respondent insurance company with 7% interest from the date of application till its deposit. On deposit of the amount, appellant is entitled to withdraw the same. The appeal is partly allowed. J.B.KOSHY

JUDGE

K.P.BALACHANDRAN

JUDGE

tks


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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