IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 MACA.No. 51 of 2006() --------------------- OPMV.1432/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ----------------------------------- JOMON @ JEEMON, S/O. CHACKOCHAN, CHAMAKALA, ARPOOKKARA VILLAGE, VILLOONNI P.O., KOTTAYAM TALUK. BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. LUKOSE @ KURIAN, S/O. JOSEPH, ORATHU HOUSE, MANNANAM P.O. 2. A.K. JAY AIRUKUZHIYIL, AIRUKUZHIYIL HOUSE, PERUMBAIKADU P.O., KOTTAYAM. 3. THE NATIONAL INSURANCE CO. LTD., KOTTAYAM. R2 BY ADVS. SRI.JAMES KURIAN SRI.SANTHOSH MODAYIL R3 BY ADV. SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK R.BASANT & N.K.BALAKRISHNAN, JJ. ----------------------------------------- C.M.Appl.No. 63 of 2006 & M.A.C.A No.51 OF 2006 ---------------------------------------- Dated this the 11th day of July, 2011 ORDER/JUDGMENT BASANT,J. C.M.Appl.No.63 of 2006: This petition is to condone the delay of 304 days in filing the appeal. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A No.51 OF 2006: Appellant is the claimant. He claimed an amount of Rs.1,25,000/- as compensation for loss suffered by him in a road traffic accident that took place on 10.12.1999. The fracture of the shaft of ulna is the injury suffered. He was treated as an out patient. There was no hospitalisation. He was aged 24 years. He claimed to be a coolie earning a monthly income of Rs. 4,500/-. The award shows that the claimant did not appear before the Tribunal to enable the Tribunal to verify disability if any. Exts. A1 to A12 were marked. No oral evidence was adduced. The Tribunal in these circumstances, awarded an amount of Rs.18,500/- as compensation as per the details shown below along with interest at the rate of 6% per annum. C.M.Appl.No.63 of 2006 & M.A.C.A No.51 OF 2006 2 1. Loss of earnings : Rs. 3,000/- (1500x 2) 2. Treatment expenses : Rs.1,000/- (global including all miscellaneous expenses) 3. Pain and suffering : Rs. 7,500/- 4. Loss of amenities : Rs. 7,000/- --------------- Total Rs.18,500/- ======= 2. We have heard learned counsel for the appellant/claimant and the learned counsel for the third respondent/insurer. The learned counsel for the appellant/claimant assails the impugned order on various grounds. First off all, It is contended that the quantum of monthly income reckoned at Rs.1,500/- by the Tribunal is grossly inadequate. The appellant is a healthy able bodied person aged 24 years and was working as a coolie. Even for a non employed person Schedule 2 of the Motor Vehicles Act under Column No. 6 permits the presumption of prudence that Rs.1,250/- must have been the monthly earnings. The Tribunal hence should certainly have drawn the presumption of prudence that the appellant must C.M.Appl.No.63 of 2006 & M.A.C.A No.51 OF 2006 3 have been earning a higher income, contends the counsel. 3. The next plank of contest is the amount awarded for loss of amenities at Rs.7,000/-. The learned counsel contends that the disability certificate was produced to show that the appellant has suffered physical disability to the tune of 12% on account of the injuries suffered- ie., fracture shaft of ulna. No medical documents are proved to show that there was malunion or that any further treatment has to be done for any such complication in union of the fractured bone. Ext. A10 certificate suggests that there was disability of 12%. The appellant did not appear before the Tribunal nor was the Doctor who issued Ext.A10 examined as a witness. The Tribunal obviously was not satisfied that the said certificate should be accepted. However, the tribunal awarded an amount of Rs. 70,00/- as compensation for amenities. 4. Award of interest 6% per annum is the next ground of challenge. We agree with the learned counsel that interest must have been awarded reasonably at the rate of 7.5 % per annum. Regarding the income of the appellant/claimant, we are satisfied that an income of Rs.2,000/- per musem should safely have been reckoned. Considering the nature of the injury suffered, we are C.M.Appl.No.63 of 2006 & M.A.C.A No.51 OF 2006 4 further satisfied that an amount of Rs.10,000/- can be awarded under the head of loss of amenities. We are not satisfied that the amount awarded under any other head warrants interference. 5. The above discussions lead us to the conclusion that the appellant is entitled to the following further amounts as compensation in addition to the amounts awarded by the Tribunal. 1. Loss of earning : Rs.1,000/-(2000x2 minus 3000) 2. Loss of amenities : Rs.3,000/-(10000 minus 7000) --------------- Total Rs.4,000/- ========= 6. In the result, a. This petition is allowed in part. b. In addition to the amounts awarded by the Tribunal, the appellant is found entitled to receive amount of Rs. 4,000/-(Rupees four thousand only) as shown above. c. The appellant is further found entitled for interest at the rate of 7.5% per annum from the date of the claim to the date of payment on the entire amount C.M.Appl.No.63 of 2006 & M.A.C.A No.51 OF 2006 5 of compensation. d. All other directions of the Tribunal are upheld. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns