IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 MACA.No. 1159 of 2007(G) ----------------------- OPMV.3686/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SAJU, S/O.VARU, MEKKATTUKULAM HOUSE, 9/249, RV'S GARDEN, INDIRA NAGAR, KANIPAYOOR, KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): RESPONDENTS -------------------------- 1. SHAJI, S/O.BALAN, POLIYATH HOUSE, KOTTAPADY. 2. THE ORIENTAL INSURANCE CO.LTD., U BROTHERS BUILDING, GURUVAYOOR ROAD, KUNNAMKULAM, THRISSUR. ADV. DR.ELIZABETH VARKEY FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.1159 of 2007 ------------------------------------- Dated this the 6th day of April, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant beforeus. He had suffered injuries in a motor accident which occurred on 22.04.2000. He was aged 34 years. He claims to be running a business in medical equipments. He has two shops in which he conducts such activity. He claims to get an amount of Rs.8,500/- per mensem. He had crush injury on the right ankle and foot. There was fracture of the calcaneum. Tenden injury was also suffered. He was treated as an inpatient for a period of 8 days. He had suffered physical disability. The extent of disability was certified to be 10% in Ext.A9 disability certificate. The author of Ext.A9 was not examined. 2. The Tribunal on an anxious consideration of all the relevant inputs proceeded to award a total amount of Rs.66,200/- as compensation as per the details given in para.11 which we extract below: i) Compensation for loss of earnings (3000 X 4) : Rs.12,000/- M.A.C.A No.1159 of 2007 2 ii) Expense for transportation : Rs. 500/- iii) Expense for extra nourishment : Rs. 500/- iv) Damages to clothing and articles: Rs. 500/- v) Expense for treatment : Rs.11,100/- vi) Expense for bystander : Rs. 1,000/- vii) Compensation for pain and suffering : Rs.10,000/- viii) Compensation for permanent disability (3000X12X17X5/100) : Rs.30,600/- ................. Total : Rs.66,200/- .................. The said amount was directed to be paid along with interest @ 7% per annum. The respondent/insurer was permitted to recover the amount from the owner after payment. 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, the learned counsel for the appellant assails the impugned award on various grounds. 4. First of all it is contended that monthly income reckoned by the Tribunal at Rs.3,000/- is not justified at all. Though the appellant a businessman has not at all produced any M.A.C.A No.1159 of 2007 3 clinching or authentic documents to prove his monthly income the Tribunal should have taken into consideration the fact that he has registration certificates Exts.A12 and A13 in respect of his business. Exts.A14 and A15 show the monthly payments which he was making towards certain chitties. Ext.A16 series reveals the telephone bills in connection with his business. These must have persuaded the Tribunal to hold that he was getting an income of Rs.8,500/- per mensem as claimed by him, contends the counsel. The evidence available do not actually prove the income, but can definitely give the Court an idea about the probable income. We are satisfied that there is merit in the challenge raised against the finding of the Tribunal regarding monthly income. We are satisfied that an amount of Rs.4,000/- can fairly and reasonably be reckoned as the monthly income of the appellant. In coming to this we have drawn support from the various documents referred above which though insufficient to prove the precise income, do definitely indicate broadly the probable income. 5. It is next contended that the Tribunal erred grossly in not accepting and acting upon Ext.A9 disability certificate which shows the physical disablement suffered to be 10%. The Tribunal accepted only 5% as the resultant disability. The M.A.C.A No.1159 of 2007 4 counsel argues that in the light of contents of Ext.A9 disability certificate, the Tribunal ought to have held that the reduction in earning capacity is 10% itself. 6. While computing the quantum of compensation payable under the multiplier-multiplicand method, what is precisely crucial is not the extent of physical disability, but the reduction in earning capacity. The burden is definitely on the claimants to prove the precise reduction in earning capacity. Ext.A9 is not very explicit as to what is the reduction in earning capacity though there is an attempt to quantify the physical disability. The nature of the employment of the appellant must be taken into consideration. He manages the business. In these circumstances, we are satisfied that even assuming that the physical disability given in Ext.A9 certificate is not incorrect, considering the nature of the employment, the same can be said to have resulted only in a lesser reduction in earning capacity. We are, in these circumstances, satisfied that the course adopted by the Tribunal of reckoning the reduction in earning capacity to be 5% does not warrant interference. 7. The counsel then contends that at any rate no compensation has been awarded for the loss of amenities. Undoubtedly physical disability has been suffered by the M.A.C.A No.1159 of 2007 5 appellant. Ext.A9 gives the details of that physical disability. We have already found that such physical disability can be assumed to result in reduction in earning capacity to the extent of 5%. Physical disability suffered has two fold reflections on the life of the victim. It reduces the earning capacity of the appellant. It also causes impairment in the quality of enjoyment of life which the appellant can aspire to lead in future. The victim/appellant is shown to be a person aged 34 years and going by the average life expectancy of an Indian, the appellant will have to endure the physical disability for a further period of 3 ½ decades. For such reflection of the disability on the life of the appellant, no compensation has been awarded by the Tribunal. This obviously is incorrect. We are satisfied in the circumstances of the case that an amount of Rs.12,500/- can be awarded as compensation for loss of amenities consequent to disability in addition to the compensation awarded for loss of earning capacity. 8. Even though challenge is raised against the amounts awarded under the other heads, we are not persuaded to agree that such amounts fixed by the Tribunal demand or warrant appellate interference. 9. The above discussions lead us to the conclusion that the appellant is entitled for the following further amounts as M.A.C.A No.1159 of 2007 6 compensation in addition to the amount already awarded by the Tribunal. i) Compensation for reduction in earning capacity (4000X12X17X5/100) minus 30,600) : Rs.10,200/- ii) Loss of amenities (no amount awarded) : Rs.12,500/- iii) Loss of earnings (4X4000 minus 12,000) : Rs.4,000/- ............... Total : Rs.26,700/- ............... 10. Needless to say, the entire amount of compensation shall carry interest at the rate directed by the Tribunal from the date of petition till payment. 11. This appeal is allowed in part to the above extent. In all other respects the impugned award is upheld. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-