IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 MACA.No. 1355 of 2008() ----------------------- OPMV.2962/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SUNILKUMAR.K.R, AGED 29 YEARS, S/O.RAMAKRISHNAN, KURUVELI HOUSE, MADAVAKKARA CHITTISSERY P.O, THRISSUR DISTRICT-680301. BY ADV. SRI.K.B.MOHANDAS SRI.LELLULAL T.G.THUNDATHIL SRI.K.A.SREEJITH SRI.M.R.DHANIL RESPONDENT(S): --------------- 1. MR.P.SREEDHARAN NAIR, MARANCHERY HOUSE, ALUKKAL MADAM, AMBALLUR P.O, THRISSUR. 2. BIJU.K.T, S/O.THANKAPPAN, KAIMAPARAMBIL HOUSE, ALUKKAL MADAM, AMBALLUR P.O, THRISSUR. 3. THE ORIENTAL INSURANCE CO.LTD, B02, K.P.N.SHOPPING COMPLEX, OPP.THIRUVAMPADI TEMPLE, SHORANUR ROAD, THRISSUR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A. No.1355 of 2008 ------------------------------------- Dated this the 17th day of February, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.3 lakhs as compensation for personal injuries suffered in a motor accident which took place on 26.08.01. He had suffered crush injury on the left foot. Bones were protruding outside. Compound fracture of the bone of the left lower leg was suffered. Anterial tibial vessels were injured and exposed. There was fracture of the medial mallelous and injury to the left knee joint as described in Ext.A3 wound certificate. He was an inpatient for a period of 23 days in two spells. He claimed that he was a patch worker and was earning an income of Rs.6,000/- per mensem ie. @ Rs.200/- per day. He claimed that he had suffered disability. Ext.A11 disability certificate issued by PW1 was produced to show that the extent of such disability suffered is 18%. The evidence of PW1, the doctor who issued Ext.A11 disability certificate was adduced and Exts.A1 to A14 were marked. The Tribunal came to the M.A.C.A. No.1355 of 2008 2 conclusion that the appellant is entitled for an amount of Rs.1,79,480/-. The Tribunal took the view that in the absence of better evidence, only Rs.2,000/- can be reckoned as the income per mensem of the appellant. Ext.A11 and the evidence of PW1 did not persuade the Tribunal to accept that there was 18% physical disability. The Tribunal took note of the fact that the scale of assessment is not mentioned and that it is not specified whether the disability suffered quantified in percentage related to the limm affected or the whole body. However, the Tribunal, taking note of the fact that physical disability has actually resulted, accepted that at least 9% disability must have been suffered and accordingly proceeded to award an amount of Rs.38,850/- as compensation for reduction in earning capacity consequent to permanent disability and a further amount of Rs.10,000/- as compensation for loss of amenities and enjoyment of life consequent to the physical disability suffered. The details of the amount awarded are given in detail in para.9 of the impugned award. 2. The appellant claims to be aggrieved by the impugned award. Called upon to explain the precise nature of the challenge which the appellant wants to raise against the impugned award, the learned counsel for the appellant assails M.A.C.A. No.1355 of 2008 3 the impugned award on two specific grounds. The counsel contends first of all that reckoning of Rs.2,000/- only as monthly income is not justified. Secondly the counsel contends that adoption of only 9% as the percentage of physical disability consequent to the accident/injuries is not justified. 3. We have rendered our anxious consideration to all the relevant circumstances. The appellant is shown to be a person aged about 28 years on the date of the accident. Multiplier had correctly been taken. Though he asserted that he gets an income of Rs.6,000/- per mensem and produced Ext.A13 experience certificate, which was not introduced by formal evidence, the Tribunal accepted only Rs.2,000/- as the monthly income. It would have been puerile for the Tribunal to swallow the contents of Ext.A13 experience certificate, which has not been proved satisfactorily. The Tribunal was left in an unenviable situation without any satisfactory, cogent and acceptable evidence about the actual income derived. In these circumstances the Tribunal appears to have drawn the presumption of prudence and taken Rs.2,000/- as the monthly income even in the absence of better evidence. We do not find any reason to interfere with that finding of fact entered by the Tribunal at the instance of the appellant. M.A.C.A. No.1355 of 2008 4 4. Coming to the percentage of physical disability assessed and reported in Ext.A11 disability certificate, we have gone through the nature of the disability which has been described in Ext.A11. The following is the precise consequence which the accident/injuries left behind. i. Ankloysis of left ankle at neutral position ii. Fixed cavus deformity of left foot. iii. Bulky scar on the anterior aspect of left ankle and dorsum of foot. iv. Left big toe is at 200 plantar flexion at MTP joint level. No active dorsiflexion possible. v. All the toes of left foot no active movements possible. vi. Wasting of calf muscles of left leg present. As rightly noticed by the Tribunal that there is an omnibus assessment of the permanent disability at 18%. The details of the basis on which such assessment is made is not given in Ext.A11. Nor is it made clear whether the disability assessed is with reference to the limb in question or the total body disability. In the nature of materials that are available and having revetted our pointed attention to i to vi referred to above, we are satisfied that the Tribunal committed no error warranting interference in accepting 9% as the physical disability. M.A.C.A. No.1355 of 2008 5 5. The above discussions lead us to the conclusion that no appellate interference is warranted. 6. In the result, this appeal is dismissed. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-