IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 MACA.No. 829 of 2005() ---------------------- OPMV.3444/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S)/CLAIMANT: --------------------------------- M.J. ALEX, AGED 39 YEARS, S/O. M.C. JOSEPH, MADATHIPARAMBIL HOUSE, X/299, CHERIAKADAVU, KANNAMALI P.O., COCHIN-8. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): --------------- 1. P.J. JOHNSON, S/O. P.B. JOSEPH, PULICKAL HOUSE, KATTPARAMBU, KANNAMALI, COCHIN-8. 2. UNITED INDIA INSURANCE CO.LTD., BY ITS MANAGER, MTPC OFFICE, VETTUKKATTIL BUILDINGS, M.G. ROAD, KOCHI-16. BY ADVS. SRI.P.JAYASANKAR FOR R2 SRI.S.MAMMU FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 829 OF 2005 --------------------------------------------------------- Dated this the 19th day of March, 2009 JUDGMENT Basant, J. The claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.5,00,000/- as compensation for personal injuries suffered by him in an accident which occurred on 10.5.1996. He was driving an autorickshaw at the relevant time. He was aged 31 years. He claimed to have an income of Rs.3,000/- per mensem. He was an inpatient for a period of nine days. On account of the injuries suffered by him, he lost vision of his right eye completely. He allegedly suffered disability. The Medical Board which examined the appellant found that he was having bulbic right eye and complete loss of vision of the right eye. His visual disability was assessed to be 30%. 2. Before the Tribunal, the appellant and an eye witness to the occurrence were examined as PWs.1 and 2. Exts.A1 to A20 were marked. The Tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant is entitled to the following amounts as M.A.C.A. NO.829/2005 2 compensation: i. Transport to hospital :Rs. 500/- ii. Damage to clothing :Rs. 500/- iii. Extra nourishment :Rs. 1,000/- iv. Bystander expenses :Rs. 1,000/- v. Treatment expenses (against bills produced) :Rs. 15,000/- vi. Loss of earning (1500x6) :Rs. 9,000/- vii. Pain and suffering :Rs. 20,000/- viii. Loss of earning capacity (1500x12x17x30/100 :Rs. 91,800/- ix. Loss of amenities :Rs. 5,000/- ----------------- Total :Rs.1,43,800/- ----------------- The said amount was directed to be paid along with interest at the rate of 9% per annum. 3. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, learned counsel for the appellant, first of all, contends that the Tribunal erred grossly in reckoning M.A.C.A. NO.829/2005 3 only Rs.1,500/- as the monthly income of the appellant. The accident took place in 1996. The presumption of prudence permissible under the Second Schedule enables the courts to conclude that even a non earning person must be assumed to be earning Rs.1,250/- per mensem. In the absence of better evidence, we are not persuaded to agree with the contention that the monthly income reckoned by the Tribunal warrants interference. 4. Counsel then contends that the Tribunal went wrong wholly in not correctly ascertaining the distinction between occupational disability and physical disability. Physical disability is the impairment of the physical faculties of the victim. Such physical disability has reflections on the earning capacity of the victim as also on the quality of enjoyment of future life. The Tribunal merely adopted the disability of 30% to be the reduction in earning capacity. In coming to this conclusion, the Tribunal did not take into account the fact that the appellant is qualified, competent and experienced to do the work of driving an autorickshaw for which occupation, loss of vision of one eye is detrimental and fatal. He is unlikely to get renewal of his licence if the disability were to be disclosed. However, with such disability, the appellant cannot be expected to do identical work at any rate. Learned counsel relies on the decisions of the M.A.C.A. NO.829/2005 4 Supreme Court reported in Pratap Narain Singh Deo v. Sriniwas Sabata (1976) 1 S.C.C. 289 and Janardhan v. United India Insurance Co.Ltd., 2008(2) K.L.T. 995(SC). 5. Learned counsel for the Insurance Company submits that the doctor who issued the medical certificate has not been examined. Even in the absence of better evidence, we are satisfied that there has been complete loss of vision of the right eye of the appellant and that the right eye had become bulbic. Counsel for the appellant points out that as per entry 25 of Part II of the Workmen's Compensation Act, the physical disability can be assumed to result in 40% reduction in earning capacity for any worker and that the appellant, being a driver, the percentage of reduction in earning capacity must be held to be much higher. It amounts to complete reduction in earning capacity as a driver, contends counsel. 6. We find force in this submission. There is some indication to show that the driving licence of the appellant has been renewed. It is not stated whether such renewal was after disclosure of the fact that he had lost complete vision of his right eye. At any rate, it is easy to conclude that this disability would detrimentally affect the ability of the appellant to drive a motor vehicle whether his licence is renewed or not. Every person M.A.C.A. NO.829/2005 5 has a duty to act in such a manner as to reduce the loss suffered. In that view of the matter, it is not necessary to reckon that the physical disability has resulted in 100% total disability. Under the Workmen's Compensation Act, it is not the complete amount of loss which is paid. It is the specified amounts which are paid. The decisions referred to above need not be blindly imported into a claim under Section 166 of the Motor Vehicles Act. At any rate, we are satisfied that the loss of the crucial faculty - loss of complete vision of one eye can safely be assumed to have resulted in 50% reduction in earning capacity. The appellant deserves to be compensated accordingly. 7. For loss of amenities, Rs.5,000/- is seen awarded. The appellant who is aged 31 years will have to endure the disability for another period of about four decades, going by the life expectancy of an average Indian. The disability suffered by the appellant will affect the quality of enjoyment of his life. We agree with the learned counsel for the appellant that the amount awarded by the Tribunal for loss of amenities is grossly inadequate. 8. On the basis of the above discussions, we hold that the appellant is entitled to the following further amounts by way of compensation in M.A.C.A. NO.829/2005 6 addition to the amounts already awarded by the Tribunal: i. Loss of amenities (25,000 minus 5,000) :Rs.20,000/- ii. Compensation for reduction in earning capacity (1500x12x17x50/100= 1,53,000 minus 91,800) :Rs.61,200/- --------------- Total :Rs.81,000/- --------------- We further direct that the entire amount of compensation shall carry interest at the rate awarded by the Tribunal from the date of the petition till date of payment. 9. This appeal is allowed in part to the above extent. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.829/2005 7 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.829/2005 JUDGMENT 19th March, 2009 M.A.C.A. NO.829/2005 8