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 11TH JANUARY 2010 / 21TH POUSHA 1931 MACA.No. 1233 of 2006(A) ----------------------- OPMV.3177/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER: ----------------------------------- SEENA ABRAHAM, W/O. P.J. ABRAHAM JOSE, POLAYIL HOUSE, THEVARAKKAVU ROAD, TRIPUNITHURA. BY ADV. SRI.VIVEK VARGHESE P.J. RESPONDENTS: --------------- 1. T.I. THOMAS, THAIKKATTIL HOUSE, PAVARATTY P.O., TRICHUR DISTRICT. 2. MANOHAR BABU, KARAYIL HOUSE, KOORKKANCHERRY, TRICHUR DISTRICT. 3. THE ORIENTAL INSURANCE CO.LTD., REP. ITS REGIONAL MANAGER, COCHIN-35. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ M.A.C.A No.1233 of 2006 ------------------------------------- Dated this the 11th day of January 2010 JUDGMENT BASANT, J. Claimant is the appellant. She claimed compensation for injuries suffered in a motor accident. The Tribunal on an anxious consideration of all the relevant inputs awarded a total amount of Rs.75,500/- as compensation as per the details shown below: i) Transport to hospital : Rs. 500.00 ii) Damage to clothings : Rs. 500.00 iii) Extra nourishment : Rs. 1,000.00 iv) Attendant expenses : Rs. 1,000.00 v) Treatment expenses : Rs.42,000.00 vi) Loss of earnings : Rs. 4,500.00 vii) Pain and suffering : Rs.18,000.00 viii) Loss of amenities : Rs. 8,000.00 ....................... Total : Rs.75,500.00 ........................ 2. The appellant/claimant claims to be aggrieved by the impugned award. What is the grievance? The main grievance M.A.C.A No.1233 of 2006 2 urged is that the Tribunal has erred grossly in reckoning the monthly income at Rs.1,500/- only. She was allegedly running a telephone booth and a photostat copier activity. According to her, her monthly income was Rs.5,000/-. No better evidence was placed before the court. The Tribunal accepted Rs.1,500/- as monthly income. She was an inpatient for 25 days. Both bones of the right forearm were fractured. She was in plaster for a period of 3 months. In these circumstances, the counsel argues that both monthly income and the period of involuntary unemployment have not been correctly taken into reckoning. 3. We have heard the learned counsel for the appellant and the insurance company. We have considered the amounts awarded under the impugned award under the other heads as also the interest awarded. Taking all the relevant circumstances into account, we are satisfied that the appellant/claimant can safely be held to have suffered involuntary non employment for a period of 6 months consequent to the injury suffered by her. We are further satisfied that even in the absence of better evidence, it was safe to assume that the appellant must have been earning an income of Rs.2,000/- per mensem. In these circumstances, M.A.C.A No.1233 of 2006 3 under the head `loss of earnings', she is fund to be entitled to an amount of Rs.12,000/- (6 X 2000) as compensation. Deducting the amount of Rs.4,500/- already awarded, the claimant is thus found to be entitled to a further amount of Rs.7,500/- under the head of loss of earnings. She is found to be not entitled for any further amount under any other head. Even though there is a contention that she had suffered disability, there is absolutely no material placed before Court to show that the injuries have resulted in such disability and consequent reduction in earning capacity. We take note of the fact that the Tribunal had already awarded an amount of Rs.18,000/- under the head of `pain and suffering' and the amount of Rs.8,000/- under the head of `loss of earning'. We also take note that the Tribunal has awarded 9% interest from the date of petition also. There is no appeal by the insurance company and we are not persuaded to agree that the rate of interest deserves to be modified in this appeal. 4. In the result: a) This appeal is allowed in part; b) The impugned award is upheld in all other respects. But it is held that the the appellant/claimant is entitled to a M.A.C.A No.1233 of 2006 4 further amount of Rs.7,500/- (Rupees Seven thousand and five hundred only) under the head `loss of earnings'. The amount shall carry interest from the date of the petition at the same rate as awarded by the Tribunal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- M.A.C.A No.1233 of 2006 5 R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.1352 of 2006 in M.A.C.A No.1233 of 2006 ------------------------------------- Dated this the 11th day of January 2010 JUDGMENT BASANT, J. The learned counsel for the Insurance company, ie. the 3rd respondent submits that the liability of the insurer is not disputed. In these circumstances, it is not necessary to wait for issue and return of notice to respondent Nos.1 and 2. Death of respondent No.2 is recorded. No further steps regarding respondents 1 and 2 is necessary. The matter is held to be not defective. M.A.C.A No.1233 of 2006 6 2. This petition is to condone the delay of 71 days in filing an Appeal. We are satisfied that a lenient view can be taken and the delay can be condoned. 2. Petition allowed. Delay condoned. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- M.A.C.A No.1233 of 2006 7 R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.1352 of 2006 & M.A.C.A No.1233 of 2006 ------------------------------------- Dated this the 11th day of January 2010 JUDGMENT BASANT, J. The learned counsel for the Insurance company, ie. the 3rd respondent submits that the liability of the insurer is not disputed. In these circumstances, it is not necessary to wait for issue and return of notice to respondent Nos.1 and 2. Death of respondent No.2 is recorded. No further steps regarding respondents 1 and 2 is necessary. The matter is held to be not defective. 2. C.M.Application No.1352 of 2006 is to condone the delay of 71 days in filing an Appeal. We are satisfied that a lenient view can be taken and the delay can be condoned. 3. Petition allowed. Delay condoned. M.A.C.A No.1233 of 2006 8 (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-