IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 MACA.No. 2017 of 2006() ----------------------- OPMV.455/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- RAZACK, S/O.MOIDU, KURIYADI THARAMMAL HOUSE, P.O.AYINIKKAD, KOYILANDY TALUK, PIN: 673 521. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SMT.SANJANA R.NAIR RESPONDENT(S): RESPONDENTS: --------------------------- 1. M.K.YOUSUF, S/O.ASSAINAR, MUNDAVANAKANDI HOUSE, ONCHIYAM AMSOM, KANNOOKKARA DESOM, P.O. KANNOOKKARA, VADAKARA TALUK, PIN: 673 102. 2. M/S. NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, CHEROOTTY ROAD, P.O.CALICUT. ADV. SRI.K.P.SUDHEER FOR R1 SRI.THOMAS MATHEW NELLIMOOTTIL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * M.A.C.A.No.2017 of 2006 ---------------------------------------- Dated this the 3rd day of April 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He claimed compensation for personal injuries suffered in a motor accident which took place on 19/03/2002. At the time of the accident, he was aged 29 years. He claimed to be a fish vendor earning an income of Rs.7,500/- per mensum. He had suffered amputation above the knee of the left leg. He had suffered a fracture of the right leg also. He continued as an in- patient for a period of 26 days. He had continued as an out patient thereafter. He claimed a total amount of Rs.8,00,000/- as compensation. Before the tribunal, he produced Ext.A1 to A3. He examined himself as PW1. 2. The tribunal on an anxious consideration of all the relevant inputs proceeded to pass the impugned award directing payment of an amount of Rs.2,25,085/- as compensation as per the details shown below: M.A.C.A.No.2017/06 2 1. Pain and suffering Rs.40,000/- 2. Mental shock and inconvenience suffered Rs.20,000/- 3. Transportation Rs.1,000/- 4. Bystanders and miscellaneous Rs.5,200/- expenses (Rs.200/- x 26) 5. Medical expenses Rs.61,684/- (against bills produced) 6. Compensation for disability Rs.97,200/- (Rs.1,500/- x 12 x 30/100 x 18) Total Rs.2,25,085/- The said amount was directed to be paid along with interest @ 6% per annum. 3. The appellant claims to be aggrieved by the impugned award. What is the grievance? Called upon to explain the precise nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on various grounds. 4. First of all it is contended that interest was awarded only @ 6% per annum. The counsel contends, relying on precedents, that interest must have been awarded at least @ 7.5% per annum. We agree with the learned counsel. M.A.C.A.No.2017/06 3 4. The learned counsel contends that the tribunal has grossly erred in reckoning the monthly income of the appellant at Rs.1,500/- per mensum. The assumption is totally unreasonable. The appellant was a fish vendor who claimed to earn Rs.7,500/- per mensum. Though no better and specific evidence could be made available to prove the income of the appellant, the learned counsel for the appellant contends that the tribunal must have drawn presumptions of prudence taking into account the realities of the situation. The learned counsel points out that in 1994, 2nd schedule to the Motor Vehicles Act permits the drawal of the presumption of prudence that even a non-earning person can be assumed to earn an income of Rs.1,250/- per mensum. Acceptance of Rs.1,500/- as the income of a person aged 29 years in 2002 is unrealistic, contends the counsel. 5. The burden is always on the claimant to place satisfactory materials before the tribunal to enable the tribunal to pass a fair, just and reasonable award. If adequate evidence is not made available, it is only the claimant who will be left to suffer. But this does not mean that the tribunal should look for M.A.C.A.No.2017/06 4 documentary evidence to prove every fact. The tribunals are constituted to render rough and ready justice. Drawal of presumptions of prudence is perfectly justified by a tribunal. An employee like a fish vendor may not be able to produce before the tribunal satisfactory documents to prove his earnings. The tribunal can certainly take into account the presumption of prudence permitted under the 2nd schedule. The tribunal can take note of the fact that the appellant is surviving and continuing to be living. For this he needs amounts. We are satisfied, in these circumstances, that in any view of the matter, the tribunal could safely have assumed that the appellant was drawing an amount of Rs.2,000/- per mensum on the date of the accident. In coming to this conclusion, we have taken the view that the appellant alone can be left to suffer for absence of satisfactory data before the tribunal. 6. The learned counsel next contends that the reduction in earning capacity reckoned by the tribunal at 30% is perversely low. We have satisfactory evidence to show that he has amputation of one leg above the knee. No medical certificate to prove extent of disability is placed before the tribunal. The M.A.C.A.No.2017/06 5 tribunal could safely have sent the appellant to the medical board if it felt that better evidence was necessary on the point. The tribunal did not do so. The learned counsel for the appellant relied on the relevant entry in the first schedule to the Workmen Compensation Act to contend that amputation of one leg above the knee must be held to result in reduction in earning capacity to the extent of 70%. There can always be a dispute as to whether such disability falls under entry 18 or 19. Definitely it would fall under entry 19 if it is not under 18. 60% can safely be assumed to be extent of reduction in earning capacity in the instant case. The appellant was a fish vendor and loss of one leg would materially affect his earning capacity. The tribunal relying on the available inputs came to the conclusion that only 30% can be reckoned as the reduction in earning capacity. What is crucial is not the physical disability; but the reduction in earning capacity. We are absolutely satisfied that taking cue from entry 19 of part II of the Workmen Compensation Act, 60% atleast could certainly have been taken as the extent of reduction in earning capacity consequent to injury (amputation of one leg above the knee) and the nature of employment of the appellant M.A.C.A.No.2017/06 6 (a fish vendor). Consequently, the appellant will be entitled for higher amount as compensation for reduction in earning capacity. 7. The learned counsel contends that adequate compensation has not been awarded under the head loss of amenities. We note that the tribunal has awarded a total amount of Rs.60,000/- under the heads of pain and suffering and mental shock and inconvenience. We are satisfied that no further amounts need be awarded under the head loss of amenities. 8. Finally, the learned counsel contends that no compensation has been awarded for total loss of earnings for the period immediately following the accident and treatment. We do find merit in this contention. Considering the nature of the accident, we find it easy to assume even in the absence of better evidence that there must have been total loss of earnings for a period of six months following the date of the accident. Consequently, the learned counsel is entitled to compensation under that head also. We note that the tribunal has omitted to award any amount under that head obviously. M.A.C.A.No.2017/06 7 9. In the result, we hold that the appellant is entitled to the following further amounts by way of compensation in addition to the amounts already awarded by the tribunal. 1. Compensation for reduction 1,62,000/- in earning capacity [(Rs.2,000/- x 12 x 18 x 60/100) minus 97,200/-] 2. Compensation for loss of Rs.12,000/- earnings (no amount awarded) (Rs.200/- x 6) Total Rs.1,74,000/- We further direct that the entire amount of compensation shall carry interest @ 7.5% per annum from the date of the petition to the date of payment. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.2017/06 8 M.A.C.A.No.2017/06 9 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009