IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 MACA.No. 435 of 2004() ---------------------- OPMV.77/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- ELDHO @ BINTY, AGED 30 YEARS, S/O. GEORGE (JACOB), CHUMATHAYIL HOUSE, NELLIMATTAM, KUTTAMANGALAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): RESPONDENTS: ------------------------------------------------------ 1. R.A. GOERE, S/O. ABRAHAM, ELAVUMKUDY HOUSE, ADIMALY. 2. K.N. SOMAN, S/. NEELAKANDAN, KOLLAMMAVKUDIYIL HOUSE, 10TH MILY, VALARA. 3. UNITED INDIA INSURANCE COMPANY LTD., ALWAYE. 4. THE DIRECTOR, RELIANT HIRE PURCHASE COMPANY LTD., KOTHAMANGALAM. 5. THE NEW INDIA INSURANCE ASSURANE CO.LTD., MUVATTUPUZHA BRANCH. ADV. SRI.VPK.PANICKER FOR R5 SRI.P.SANKARANKUTTY NAIR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.A.C.A. No. 435 of 2004 ------------------------------------------------- Dated this the 3rd day of March, 2009 JUDGMENT Basant,J. The claimant before the Tribunal is the appellant before us. He claimed compensation for the personal injuries suffered by him in an accident which occurred on 26/6/97. An amount of Rs.3 lakhs was claimed as compensation. At the time of accident, he was 23 years old. He was an autorikshaw driver by profession. His monthly earning was claimed to be Rs.3,000/-. He had suffered fracture of the right femur. He was an inpatient in three spells for a total period of 68 days and the period of hospitalisation extended from 26/6/97 to 19/8/99. He had suffered permanent disability. There was lengthening of the right lower limb by 2 cms. There was wasting of the right thigh by 1 cm. Knee flexion was limited to M.A.C.A. No. 435 of 2004 -: 2 :- 90 degree only. Right hip movement was restricted to 100 degree. He was unable to walk properly. He was swaying to the right side due to the lengthening of the right lower limb. He was unable to squat, climb up and down. He was unable to do heavy manual activity. The X-ray film showed osteo-arthritis changes also. Before the Tribunal the claimant examined himself as P.W.1 and the Doctor who issued the disability certificate showing the above details as P.W.2. The discharge summary for the three spells of hospitalisation were produced. 2. The Tribunal, on an anxious consideration of all the relevant circumstances, came to the conclusion that the appellant is entitled for an amount of Rs.86,900/- only as per the details shown below: 1. For loss of earning - Rs.8,000/- (Rs.2,000/- x 4) 2. For transport to hospital - Rs.3,000/- 3. For extra nourishment - Rs.3,000/- 4. For damage to clothing - Rs.300/- 5. For medical expenses - Rs.35,600/- (against bills produced) 6. For bystander’s expenses - Rs.4,000/- 7. For pain and suffering - Rs.20,000/- 8. For disability (loss of amenities)- Rs.10,000/- M.A.C.A. No. 435 of 2004 -: 3 :- 9. For loss of earning capacity - Nil 10. For mental agony, discomfiture etc. - Rs.3,000/- ----------------- Total - Rs.86,900/- ======= Interest was directed to be paid at the rate of 9% per annum from the date of the application. 3. The appellant claims to be aggrieved by the impugned award. What is the reason? The learned counsel for the appellant contends that the Tribunal erred grossly in not directing payment of any amount under the head of loss of earning capacity. The learned counsel further contends that the compensation awarded for loss of amenities ( called disability) – Rs.10,000/- is grossly inadequate. The learned counsel for the appellant further submits that considering the period of hospitalisation and treatment, the loss of earnings computed for a period of 4 months alone is not justified. The learned counsel also submits that the multiplicand adopted – monthly earnings at Rs.2,000/- is not sufficient. 4. We have considered all the relevant circumstances. We are not satisfied that the quantum of monthly income reckoned at Rs.2,000/- for the appellant – an autorikshaw driver on the date of the accident - 26/6/97 is in any way inadequate. In the M.A.C.A. No. 435 of 2004 -: 4 :- absence of better evidence that conclusion of the Tribunal does not appear to us to be improper or unreasonable. 5. Considering the period of hospitalisation in three spells extending from 26/6/97 to 19/8/99 in three different spells, we are satisfied that the appellant must have suffered loss of earning for a period of six months at least. We are satisfied that an amount of Rs.12,000/- (Rs.4,000/- more) should have been awarded under that head (Rs.2,000/- x 6). 6. The appellant, we are convinced, has suffered a permanent disability. The details available in Ext.A15 disability certificate is corroborated by the oral evidence of P.W.1 – the claimant, as also the Doctor –P.W.2 who issued that certificate. Factual details are given in the certificate; but the extent of physical disability is not given succinctly. It is mentioned that there is disability of 40% of the right lower limb. We are satisfied that this disability suffered by him though it has not resulted in total permanent disablement must be having an adverse impact on his power to work and earn his livelihood as a driver which involves use of the feet. In the absence of better evidence to precisely quantify the extent of physical disability and the consequent reduction in earning capacity, we take note of the fact that the physical disability has resulted. It must have M.A.C.A. No. 435 of 2004 -: 5 :- a bearing on his capacity to earn his livelihood as an autorikshaw driver. He certainly will have to undertake greater strain, with the disability suffered to perform the work which he was earlier doing even assuming that he is able to give the same out turn of work. The assessment of compensation is both art and science. This Court can throw its hands up because the quantum of permanent disability has not been assessed authentically. We are in the circumstances of this case satisfied that the physical disability which is proved convincingly to have been suffered by the claimant must have resulted in loss of earning capacity to the extent of 10%. The proper multiplier applicable under the 2nd Schedule considering the age of the appellant is 17. Consequently, the appellant will be entitled to a further amount of Rs.40,800/- (Rs.2,000/- x 12 x 17 x 10/100). Considering the age of the claimant (23 years) and the probable period of time during which he will have to endure the physical disability we are satisfied that an amount of Rs.20,000/- under the head of loss of amenities would be absolutely reasonable. We are not persuaded to interfere with the amounts awarded under the other heads. 7. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.54,800/- as per the M.A.C.A. No. 435 of 2004 -: 6 :- details shown below: 1. For loss of earnings - Rs.4,000/- more (Rs.2,000/- x 6 minus Rs.8,000/-) 2. For loss of amenities - Rs.10,000/- more (Rs.20,000/- minus Rs.10,000/-) 3. For loss of earning capacity (Consequent to the disability - Rs.40,800/- (as shown above) ------------------ Total - Rs.54,800/- ======= 8. The appellant shall be entitled to a further amount of Rs.54,800/- in addition to the amounts already awarded by the Tribunal. Needless to say, the appellant shall be entitled to interest on the entire amount of compensation at the rate awarded by the Tribunal from the date of the petition. 9. This appeal is accordingly allowed to the above extent. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/ M.A.C.A. No. 435 of 2004 -: 7 :-