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. 881 of 2007(G) ---------------------- OPMV.3148/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT: APPELLANT/PETITIONER ---------------------------------- SHAHUL HAMEED T.P., S/O KUNHIMUHAMMED, AGED 41 YEARS, THADAPARAMBIL ERAKKATHIL HOUSE, KUTTIKKATTOOR POST, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS: RESPONDENTS -------------------------- 1. RAJAN, S/O MADHAVAN, THAZHECHULLIYODU VEEDU, VALAYANAD AMSOM, KOMMERI POST, KOZHIKODE. 2. NAJIM, S/O KOYA, PUTHIYOTTIL HOUSE, UMMALATHOOR THAZHAHAM, MEDICAL COLLEGE POST, KOZHIKODE. 3. THE UNITED INDIA INSURANCE, BRANCH OFFICE, SEEMA BUILDING, MAVOOR ROAD, KOZHIKODE. ADV. SMT.T.C.SOWMIAVATHY FOR R3 SMT.LATHA PRABHAKARAN FOR R1 & 2 SRI.K.M.JAMALUDHEEN FOR R1 & 2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.881 of 2007 ------------------------------------- Dated this the 3rd day of April, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 07.06.2001. He claimed to be a building contractor aged 36 years earning a monthly income of Rs.6,000/-. He claimed a total amount of Rs.2 lakhs as compensation. He had suffered multiple injuries. Right little toe at P.I.P joint level was amputated. There was avulsion of the toe nail second. There were other injuries also. He was treated only as an outpatient, it is submitted. He continued treatment as an outpatient. As many as 3 outpatient tickets are seen marked. He had suffered disability which was reckoned by the Tribunal at 6%. No oral evidence was adduced before the Tribunal. Exts.A1 to A4 were marked. The Tribunal on an anxious consideration of all the available inputs came to the conclusion that the appellant is entitled for an amount of Rs.29,450/- as compensation as per the details which are given below: M.A.C.A No.881 of 2007 2 i) Disability compensation: Rs.14,000/-(Rs.13,824/- (1200 X 12 X 16 X 6/100) rounded to Rs.14,000/-) ii) Medical treatment : Rs. 5,000/- iii) Pain and suffering : Rs. 8,000/- iv) Transportation : Rs. 1,000/- v) Damage to clothing : Rs. 250/- vi) Loss of income : Rs. 1,200/- (1200X1) ................... Total : Rs.29,450/- ................... The Tribunal further directed that the said amount be paid along with interest @ 6% per annum. 2. The appellant claims to be aggrieved by the impugned award. The learned counsel for the appellant assails the impugned award on various grounds. 3. First of all it is contended that the interest has been awarded only @ 6% per annum. Relying on precedents, it is contended that interest must have been awarded at least @ 7.5% per annum. We agree with the counsel. 4. The learned counsel for the appellant then contends that the compensation awarded under the head of pain and M.A.C.A No.881 of 2007 3 suffering is too low. The counsel points out that amputation of one toe was suffered. Even though he was treated as an outpatient, he had to continue as outpatient for a fairly long period of time as evidenced from the O.P tickets. In these circumstances award of an amount of Rs.8,000/- only under the head of pain and suffering is inadequate, contends the counsel. We agree with the counsel. We are satisfied that an amount of Rs.12,500/- can be awarded under that head. 5. Reduction in earning capacity to the extent of 6% was claimed and the same was concurred by the Tribunal. But the Tribunal reckoned the monthly income at Rs.1,200/- only. The Tribunal was totally unrealistic in adopting that course, contends the counsel. The accident took place on 07.06.01. From 1994, the second schedule to the Motor Vehicles Act permits a presumption of prudence that even a non earning person can be assumed to earn Rs.1,250/- per mensem to be drawn. Even though the appellant has not produced any better evidence to show that he was employed as a Government Contractor. The counsel relied on the statement in the F.I.R that the appellant is a contractor. Realistically at least an amount of Rs.2,500/- must be reckoned as monthly income, we feel. In coming to this M.A.C.A No.881 of 2007 4 conclusion we note that the burden is definitely on the claimant to make all relevant materials before the Tribunal to persuade the Tribunal to pass an award which is fair and reasonable. If adequate data is not placed before the Tribunal it is only the claimant who can be left to suffer. But even then reasonable inferences could be drawn by the Tribunal and it is hence that we feel that the monthly income can be reckoned at Rs.2,500/-. Quantum of compensation for reduction in earning capacity can be enhanced. For loss of income only an amount of Rs.1,200/- has been awarded as compensation. Considering the nature of the injuries, the counsel contends and we accept that it is safe to presume that the appellant must have been involuntarily unemployed for a period of 2 months. 6. We are not satisfied that the amounts awarded under any other head does require appellate interference. 7. On the basis of the above discussions, the appellant will be entitled to the following further amounts in addition to the amounts already awarded by the Tribunal. i) Loss of earnings [(2500 X 2 minus 1,200] : Rs.3,800/- more M.A.C.A No.881 of 2007 5 ii) Compensation for reduction in earning capacity (2500X12X16X6/100 =Rs.28,800/-) minus Rs.14,000/- : Rs.14,800/- ................. Total Rs.18,600/- ................. 8. We further direct that the entire amount of compensation shall bear interest @ 7.5% from the date of the petition till payment. 9. This appeal is allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-