IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 MACA.No. 1425 of 2005() ----------------------- OPMV.1404/1996 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/PETITIONER: --------------------------------------- SUDHAKARAN.P., S/O.UNNEERI, PATTATHANAM HOUSE, P.O.MANNUR (VIA) KADALUNDY, KOZHIKODE DISTRICT. BY ADV. MR.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. K.K.AYAMMOODKUTTY, MELEDATH HOUSE, MANIPURAM, KODUVALLY, KOZHIKODE. 2. M/S.NEW INDIA ASSURANCE CO. LTD., M.G.ROAD, BOMBAY. 3. T.NARAYANAKURUP, S/O.RARU NAIR, NADUVILA KANDIYIL HOUSE, OMASSERY, KOZHIKODE. 4. PRIYASH KUMAR.T.G, GIRISH BHAVAN, PADINJHARA THARA.P.O., PUZHUTHANA(VIA), WAYANAD DISTRICT. 5. M/S.NEW INDIA ASSURANCE CO.LTD., TRIPURI BUILDING, EAST NADAKKAVU, KOZHIKODE DISTRICT. R2 TO R5 BY ADVS. MR.N.S.MOHAMMED USMAN, MR.A.C.DEVY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.1425 of 2005 ---------------------------------------- Dated this the 4th day of March 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He had claimed compensation for the personal injuries suffered by him as a result of the accident which occurred on 21/5/1996. He had limited the claim to an amount of Rs.2,00,000/-. He was aged 48 years. He was allegedly employed as a gas welding fabricator and was earning an income of Rs.3,250/- per mensum . He has suffered compound fracture of the right forearm, scapula and multiple rib fracture on the right side. He was an in-patient for a period of about 55 days in two spells. He had suffered permanent physical disability. He was referred to the medical board by the tribunal and certificate issued by the medical board as Ext.C1 confirmed that he has suffered 35% disability. Before the tribunal, there was no oral evidence whatsoever. Ext.A1 to A98 and Ext.C1 were marked. 2. The tribunal, on an anxious consideration of all the relevant inputs came to the conclusion that the appellant is entitled M.A.C.A.No.1425/05 2 to an amount of Rs.1,35,750/- as per the details given below. Interest was awarded @ 7% per annum. 1. Pain and suffering Rs.20,000/- 2. Medical expenses Rs.12,000/- 3. Miscellaneous expenses Rs.3,000/- 4. Future expenses for treatment Rs.2,500/- 5. Damage to clothing Rs.250/- 6. Loss of earnings Rs.6000/- (Rs.1,500/- x 4) 7. Reduction in earning Rs.82,000/- capacity consequent to disability (Rs.1,500 x 12 x 13 x 35/100) 8. Loss of amenities Rs.10,000/- Total Rs.135,750/- 3. The appellants claim to be aggrieved by the impugned award. Called upon to explain the precise nature of challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on the following grounds: 4. First of all it is contended that the tribunal has not awarded a just and reasonable compensation under the head of pain and suffering. Only an amount of Rs.20,000/- has been awarded. Serious fracture has been suffered. The petitioner was an in-patient M.A.C.A.No.1425/05 3 for 55 days in two spells. He has suffered disability to the tune of 35%. In these circumstances, the amount awarded under the head pain and suffering is not adequate, it is contended. Considering the totality of the circumstances, we find merit in the contention. We are satisfied that an amount of Rs.25,000/- (Rs.5,000/- more) can be awarded under that head. 5. The learned counsel then contends that adoption of 1,500/- as monthly earnings of the appellant is unrealistic. The appellant is a skilled gas welding fabricator. He is aged 48 years. With such experience and competence, it is easy to assume that the appellant would certainly have been earning an income exceeding Rs.1,500/-, contends the learned counsel. Even for a non-earning person, the Law from 1994 permits a presumption of prudence that such person must be having a notional income of Rs.1,250/-. We find merit in that contention. We are satisfied that Rs.2,000/- can safely be reckoned as the multiplicand; that is the monthly earnings of the appellant. We must also note that not merely the earnings at the time of the accident; but future earning prospects will also have to be taken into consideration. It is only the claimant who can be put to suffer for want of adequate data; but even then we are satisfied that it would be safe to accept Rs.2,000/- as the multiplicand. For four months, loss of earnings Rs.6,000/- M.A.C.A.No.1425/05 4 (Rs.1,500/- x 4) has been awarded by the tribunal. A further amount of Rs.2,000/- can be awarded under this head. For the loss on account of reduction in earning capacity, the appellant will be entitled for a further amount of Rs.27,200/- i.e. [Rs.2,000/- x 12 x 13 x 35/100) minus 82,000/-]. 6. The learned counsel for the appellant contends that the tribunal, after having accepted that 35% physical disability has resulted, was not fair, reasonable and just in awarding only an amount of Rs.10,000/- to the appellant aged 48 years. He will have to endure the physical disability for the rest of his life and such disability will certainly have a major adverse impact on the quality of enjoyment of life of the appellant. We find merit in that contention and we are satisfied that award of an amount of Rs.20,000/- under this head (Rs.10,000/- more) shall serve the ends of justice eminently. 7. The learned counsel points out that there is hospitalisation for 55 days. Adequate compensation has not been awarded for miscellaneous expenses. We do note that even though the bills produced cover only Rs.6,743/-, a total amount of Rs.17,500/- (Rs.12,000/- + Rs.3,000/- + Rs.2,500/-) have been awarded in all for expenses of treatment etc. We are not satisfied that the amount awarded under that head deserves modification. M.A.C.A.No.1425/05 5 We are not satisfied that the amounts awarded under the other heads deserve modification. 8. The above discussion lead us to the conclusion that the appellant is entitled to a further amount of Rs.44,200/- (Rupees forty four thousand and two hundred only) in addition to the amount awarded by the tribunal as per details shown below. Pain and suffering Rs.5,000/- more (Rs.25,000/- minus Rs.20,000) Loss of earnings Rs.2,000/- (Rs.2,000 x 4 minus Rs.6,000/-) Reduction in earning capacity Rs.27,200/- [(Rs.2,000/- x 12 x 13 x 35/100) minus Rs.82,000] Loss of amenities Rs.10,000/- more (Rs.20,000/- minus Rs.10,000) Total Rs.44,200/- more 9. This appeal is allowed in part to the above extent. Needless to say, entire amount of compensation shall bear interest at the rate satisfied by the tribunal from the date of the petition. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.1425/05 6 M.A.C.A.No.1425/05 7 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009