IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MACA.No. 1250 of 2011(E) ----------------------- OPMV.343/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT: -------------- HUSSAIN RAWTHER, S/O.HASSAN RAWTHER, FINE HOUSE,P.O KOLATHARA, KOZHIKODE BY ADV. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA RESPONDENTS: --------------- 1. UMADEVI, SREE SATHYA HOUSE, P.O PUTHIYANGADI, KOZHIKODE. (OWNER OF THE CAR BEARING REGN.NO.KL-11/K 3150) 673 021. 2. ULLAS KUMAR P.O SREE SATHYAM,P.O PUTHIYANGADI, KOZHIKODE. (DRIVER OF THE CAR BEARING REGN.NO.KL-11/K 3150) 673 021. 3. NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PARCO TOWERS, P.M. TAJ ROAD,KOZHIKODE. (INSURER OF THE CAR BEARING REGN.NO.KL-11/K 3150) 673 001. 4. RINSHAD, S/O.SUBAIDA, RESIDING AT 7/712, FINE HOUSE, P.O.KOLATHARA, KOZHIKODE (OWNER OF THE SCOOTTER NO.KL-11/W 9219) 673 655. 5. MUHAMMED FASALUDHEEN, S/O.SAINUDHEEN, RESIDING AT RATTAKKOLLY, P.O.KALPETTA, WYNAD (RIDER OF THE SCOOTTER NO.KL-11/W 9219) 673 655. 6. NEW INDIA ASSURANCE COMPANY LIMITED, SILVER PLASA BUILDING, I.G.ROAD, KOZHIKODE (INSURER OF THE SCOOTTER NO.KL-11/W 9219) 673 001. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1250 of 2011-E ***************************** Dated this the 17th day of October, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 08.11.2008. The appellant had suffered multiple injuries including fracture of the left distal radius and intra articular communition. He was an inpatient for 3 days from 08.11.2008 to 11.11.2008. He had allegedly suffered permanent physical disability which is assessed by the Medical Board at 8%. Ext.C1 is the certificate of the Medical Board. The Tribunal accepted the same. Against a total claim of Rs.1,50,000/-, the Tribunal awarded only an amount of Rs.60,955/- as per the details given in para.10 of the impugned award, which we extract below: Sl.No. Head of claim Amount awarded 1 Transport to hospital Rs. 350.00 2 Extra nourishment Rs. 350.00 3 Loss of earnings Rs. 5,000.00 (2500 X 2 months) 4 Treatment expenses Rs.14,055.00 (21555 minus7,500) M.A.C.A No.1250 of 2011-E 2 Sl.No. Head of claim Amount awarded 5 Pain and suffering Rs.10,000.00 6 Permanent disability Rs.31,200.00 (2500X12X13X8/100) Total Rs.60,955.00 The insurance company has been made entirely liable under the impugned award. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only on the ground that the quantum of compensation awarded is inadequate. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all submits that the Tribunal erred in assuming that the appellant had not undergone treatment as an inpatient. He was an inpatient for 3 days and this can be clearly seen from the wound certificate produced, points out the learned counsel. We agree with the learned counsel for the appellant that the appellant was an inpatient for a period of 3 days. 4. It is then contended that only an amount of Rs.14,055/- has been awarded as medical expenses and the bills for payment made to the doctors (Rs.7,500/-) has been incorrectly excluded. The Tribunal noted that the payment of M.A.C.A No.1250 of 2011-E 3 Rs.7,500/- as professional charges is not duly authenticated. But it is evident that the remaining bills do not contain any vouchers to reveal payment of professional charges. In these circumstances, we take note of the fact that the appellant was an inpatient for 3 days and the fact that no bills other than the excluded bills have been produced to prove payment of professional charges to the doctors. Taking all the relevant circumstances into account, we are satisfied that a further amount of Rs.8,000/- can be awarded under the head of medical expenses including bystander's expenses. 5. It is then contended that the Tribunal has erred grossly and unrealistically in reckoning Rs.2,500/- as the monthly income of the appellant, a person aged about 48 years. He had asserted that he was a salesman earning an income of Rs.15,000/- per mensem. But no documents were produced. The learned counsel for the appellant submits that in any view of the matter, the appellant, a person aged 48 years and able bodied, should be assumed to have been earning a higher monthly income. We accept the submission of the learned counsel. We are satisfied that an amount of Rs.3,500/- can be reckoned as the monthly income. In coming to this conclusion, we take note of M.A.C.A No.1250 of 2011-E 4 the presumption of prudence permitted under clause 6 of the Second Schedule to the Motor Vehicles Act from 1994. We also take note of the precedents in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. Mohammad Tabbar & Anr. [2008 ACJ 1488], which permit Courts to assume even in the absence of better evidence that a non earning home maker and an unskilled manual labourer must be earning an income of Rs.3,000/- per mensem. We are satisfied that Rs.3,500/- can be reckoned as monthly income. This would in turn have reflections on the amount of compensation paid under the head of loss of earnings as also compensation for reduction in earning capacity (described as permanent disability by the Tribunal). 6. We further find merit in the submission that the Tribunal has erred in not awarding any amount as compensation for loss of amenities. 8% physical disability will have two fold reflections on his life. It will reduce the earning capacity. It will also impair and reduce the quality of enjoyment of life. For that dimension of loss, appropriate amount deserves to be awarded under the head of loss of amenities, we are satisfied. 7. The above discussions lead us to the conclusion that M.A.C.A No.1250 of 2011-E 5 the appellant is entitled to a further amount of Rs.42,480/- as shown below in addition to the amount already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs.2,000.00 (3500 X 2=7,000 minus 5,000/-) ii) Medical and miscellaneous expenses (including bystander's expenses) : Rs. 8,000.00 (22,055 minus 14,055) iii) Reduction in earning capacity : Rs.12,480.00 (3500 X 12 X 13 X 8/100 = 43,680 minus 31,200) iv) Loss of amenities : Rs.20,000.00 ------------------- Total : Rs.42,480.00 ======== 8. We are not persuaded to agree that the amount awarded under any other head deserves modification/enhancement. 9. The learned counsel for the appellant points out that proportionate cost has not been and ought to be awarded as held in Jeena V. Satheesh Babu.K [2011(3) KLT 943]. We agree. 10. In the result: a) This M.A.C.A is allowed in part; M.A.C.A No.1250 of 2011-E 6 b) The appellant is found entitled to a further amount of Rs.42,480/- (Rupees Forty two thousand four hundred and eighty only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) The appellant shall be entitled for the proportionate cost before the Tribunal as held in Jeena V. Satheesh Babu.K (supra); e) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/