IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 MACA.No. 496 of 2008() ---------------------- OPMV.1515/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- ELDHO S/O DANIEL, THURUTHIMALI HOUSE, MUDAKUZHA, PERUMBAVOOR. BY ADV. SRI.V.K.VEERAVUNNY SRI.P.B.SUNEER SRI.K.S.ARUN BABU RESPONDENT(S): RESPONDENTS -------------------------- 1. SRI.K.A.JOHLNY S/O ANTONY, KARUMATHY HOUSE, MULLUSSERY, VATTAPARAMBU P.O., KURUMASSERY, CHENGAMANAD. 2. SRI.ROY, S/O MATHEW KOZHIPPADAN HOUSE, MAROTTICHOVUDU, MATTOOR P.O., KALADY. 3. M/S NEW INDIA ASSURANCE CO., LTD., S.M.SHOPPING COMPLEX, ALUVA ROAD, ANGLAMALY P.O. ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- M.A.C.A. No. 496 of 2008 ------------------------------------------------- Dated this the 11th day of November, 2011 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 2/7/05. He suffered multiple injuries on his right arm. He was aged 29 years at the time of the accident. He is a mason by profession. He was allegedly earning an income of `4,000/- per mensem. He had suffered permanent total disablement. The right arm of the appellant was rendered practically useless. He is not able to do anything with that right hand. A doctor, who assessed the disability, issued Ext.A7 disability certificate which certified that his physical disability is 74%. Details are given in the certificate. 2. The Tribunal, against a total claim of `7,00,000/-, awarded a total amount of `5,12,460/- as compensation as per the details given in paragraph-9 of the impugned award which we extract below: M.A.C.A. No496 of 2008 -: 2 :- 1. Compensation for disability (2500 x 12 x 18 x 60/100) - `3,24,000/- 2. Transportation expenses - `1,500/- 3. Damage to clothing - `250/- 4. Extra-nourishment - `2,000/- 5. Attendant's charges - `10,000/- 6. Treatment expenses - `79,710/- 7. Pain and suffering - `40,000/- 8. Loss of amenities - `30,000/- 9. Disfiguration - `10,000/- 10. Loss of earnings (6 x 2500) - `15,000/- ---------------- Total - `5,12,460/- ======= 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised against the impugned award on the short ground that the quantum of compensation awarded is not adequate. 4. Called upon to explain and be specific, the learned counsel for the appellant submits that the Tribunal had erred grossly in reckoning the monthly income of the appellant at `2,500/-. The appellant is a mason - a skilled worker. He had only made a modest assertion that his monthly income was `4,000/-. The Tribunal ought to have accepted that assertion in toto, contends counsel. No materials were produced in support M.A.C.A. No496 of 2008 -: 3 :- of that assertion. The learned counsel for the appellant wants us to consider Clause (6) of the Second Schedule to the Motor Vehicles Act as also the precedents in Lata Wadhwa v. State of Bihar (AIR 2001 SC 3218) and Laxmi Devi v. Mohammad Tabbar (2008 ACJ 1488). In any view of the matter, for a skilled worker like the appellant, the Tribunal must have accepted a higher amount of monthly income at the time of the accident. The Tribunal, taking note of the improvement of prospects in employment in accordance with the dictum in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], should have accepted a higher multiplicand while ascertaining the quantum of future loss on account of reduction in earning capacity. 5. The learned counsel for the appellant next contends that though the doctor, who issued Ext.A7 disability certificate, had certified that the appellant was having a physical disability of 74%, the Tribunal erred in not accepting the same. In fact, the Tribunal ought to have taken the view that the functional efficacy of the right arm having been lost completely, the reduction in earning capacity must be held to be not below 90% drawing inspiration from Entry No.1 of Part II of Schedule I to the M.A.C.A. No496 of 2008 -: 4 :- Workmen's Compensation Act, 1923. That indicates that amputation of an arm through shoulder joint results in reduction in earning capacity to the extent of 90%. 6. We take note of all the relevant inputs. The appellant is present in person before this Court. We find merit in the submission that the functional efficacy of his right hand is lost completely. We take note of his employment as a mason. We are satisfied, in these circumstances, that it would be absolutely safe to reckon 74% as the reduction in earning capacity also. That is the extent of physical disability certified by the doctor in Ext.A7. 7. While ascertaining the compensation for reduction in earning capacity, we are satisfied that `3,250/- can be reckoned as the multiplicand. The compensation payable under the heads of loss of earnings and loss of reduction in earning capacity will hence have to be re-worked with the above inputs. 8. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `1,98,480/- (Rupees one lakh ninety eight thousand four hundred and eighty only) as compensation as shown below in addition to the amount already awarded by the Tribunal: M.A.C.A. No496 of 2008 -: 5 :- 1. Loss of earnings (6 x `3,000/- = `18,000/- minus `15,000/- ) - `3,000/- 2. Reduction in earnings capacity (`3,250/- x 12 x 18 x 74/100 = `5,19,480/- minus `3,24,000/-) - `1,95,480/- --------------- Total - `1,98,480/- ======= 9. The learned counsel for the appellant further points out that cost has not been awarded by the Tribunal. Proportionate cost on the entire amount of compensation as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943) may be awarded, it is prayed. We accept the submission. 10. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `1,98,480/- (Rupees one lakh ninety eight thousand four hundred and eighty only) in addition to the amount already awarded by the Tribunal. (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 in the impugned award. (d) We make it clear that proportionate cost before the Tribunal shall be worked out as held in Jeena v. Satheesh M.A.C.A. No496 of 2008 -: 6 :- Babu.K. (2011 (3) KLT 943) on the entire amount of compensation. (e) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- V. CHITAMBARESH (Judge) Nan/ //true copy// P.S. to Judge