IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 MACA.No. 490 OF 2008() ---------------------- OPMV.95/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM APPELLANT/PETITIONER ---------------------------- MOHANAN, S/O CHANDRAN, PULLUKATTU HOUSE, S.H.M. P.O., PERUMBAIKADU VILLAGE. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: RESPONDENTS -------------------------- 1. SALIMON, S/O AYYAPPAN, IDIVETTUMKALAYIL, MUDIYOORKARA P.O., GANDHINAGAR, PERUMBAIKADU VILLAGE. 2. MOHAN DAS, S/O NARAYANA PILLAI, KIZHAKKECHERUVILATHUTHEKKETHIL, THUMPAMON P.O., PATHANAMTHITTA. 3. THE NATIONAL INSURANCE COMPANY LTD., KOTTAYAM BRANCH, KOTTAYAM. R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE & ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. 490 OF 2008 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 10TH DAY OF NOVEMBER, 2009. J U D G M E N T Raman, J. Claimant is the appellant. The case of the petitioner before the Tribunal was that while he was riding a motor cycle bearing Reg. No. KL 04 5485 from Medical College Bhagom to Carithas Junction in a moderate speed, when he reached near Padinjattum Bhagom L.P. School, a jeep bearing No. KL-5B 5686 driven by the first respondent came from the opposite direction in a rash and negligent manner and in a high speed and hit against motor cycle as a result of which the petitioner fell on the road and sustained severe injuries. The second respondent was the owner of the jeep validly insured with the third respondent. Petitioner claimed Rs. 2,00,000/- as compensation against the respondents jointly and severally. 2. The Insurance Company admitted the policy; but contended that the accident occurred not due to any negligence on the part of the driver of the jeep as alleged. The Tribunal, after analysing the evidence on record, found that the accident occurred due to the rash and negligent driving of the jeep by its driver and the said finding has become final. M.A.C.A. 490/2008 2 3. The Tribunal awarded the appellant a total compensation of Rs. 56,780/- under various heads ie., for pain and suffering, loss of earning, damages for clothings, transportation charges, treatment expenses etc. Relying on Ext.P5 wound certificate it was found that the appellant/petitioner sustained fracture to first lumbar vertebra with mild wedging and lisfranc's dislocation, right foot. Ext.A6 is the copy of the case records of the Medical College Hospital, Kottayam, which shows that the appellant was admitted in the hospital on 9.4.2000 and was treated by open reduction and screw fixation for right foot with plaster cast and bed rest and he was discharged on 14.4.2000. The Tribunal quantified the amount of compensation under various heads after fixing the income of the claimant at Rs. 2,000/- per month. This is a case where neither side adduced any oral evidence. To prove the disability, the claimant produced the disability certificate issued by the doctor who attended him in the Medical College Hospital at Kottayam, which shows that he has suffered a permanent partial functional disability of 9%. But Ext.A7 was not proved by the appellant by examining the doctor who issued the same. However, taking into consideration the nature of the injury suffered by the appellant, the Tribunal took 4% as the disability affecting his earning capacity. Taking his income at Rs. 2,000/- and adopting a multiplier of 18, an M.A.C.A. 490/2008 3 amount of Rs.17,280/- was awarded towards loss of earning power. An amount of Rs.10,000/- was awarded towards compensation for loss of amenities. Including these amounts, a total compensation of Rs.56,780/- was awarded by the Tribunal. The third respondent Insurance Company was directed to pay the amount since the policy of insurance was admitted. 7% interest was also awarded on the amount from the date of petition till realisation. 4. Learned counsel for the appellant would contend that the monthly income fixed at Rs. 2,000/- as against Rs. 4,500/- claimed by the appellant is grossly inadequate. It is an admitted fact that no evidence regarding his income was produced nor did the appellant get himself examined in the case. In such circumstances, we cannot find anything wrong on the part of the Tribunal in fixing the income at Rs. 2,000/-. 5. It was then contended that the disability certificate issued by the doctor would show that the appellant has suffered severe injuries and that he has sustained a permanent partial disability of 9%, and as against this, fixation of 4% is not justified. We find that though in this case the doctor was not examined, the certificate issued by him and other medical records would show the nature of the injuries sustained by the appellant and the loss of earning capacity could have been fixed at 6% instead of 4%. M.A.C.A. 490/2008 4 Accordingly, we fix the loss of earning capacity at 6% in which case the appellant will get an additional amount of Rs. 8,640/- towards loss of earning power. 6. Towards loss of earning, an amount of Rs. 8,000/- was awarded by way of compensation. Considering the nature of the injury suffered namely, fracture first lumbar vertebra, it may easily be presumed that the appellant would have been under bed rest for two more months. Accordingly, we award an additional compensation of Rs. 4,000/- under this head. 7. Compensation has been correctly fixed by the Tribunal under various other heads which can not be said to be grossly inadequate. 8. It was then contended that the interest awarded is only 7% as against the normal rate of 9%. Reliance was placed on the decision of the Apex Court in Supe Dei v. National Insurance Company Ltd. (2009(4) SCC 513). In para 11 of the said judgment, the Apex Court, following the decision in Kaushnuma Begum v. New India Assurance Co. Ltd. (2001 (2) SCC 9) held that the rate of interest to be awarded and is being applied in motor accident compensation case is 9%. The learned counsel appearing on behalf of the Insurance Company , however, pointed out that in Kaushnuma Begum's case (2001 (2) SCC 9) interest awarded by the M.A.C.A. 490/2008 5 Tribunal at 12% was reduced to 9% taking note of the reduction in interest made by the Reserve Bank of India during the relevant period. In yet another decision in T.N. State Transport Corpn. v. S. Rajapriya (2005 (6) SCC 236) the Apex Court reduced the fixation of interest from 9% to 7.5 % taking note of the prevailing rate of interest on bank deposit. This decision, however, was not brought to the notice of the Apex Court while deciding the issue in Supe Dei's case (2009 (4) SCC 513). In the above facts and circumstances, fixation of interest at 7% is justified following the decision in Rajapriya's case (2005(6) SCC 236) and therefore, it cannot be said that the Tribunal has erred in awarding interest at the rate of 7% instead of 9% as contended. 9. In the result, the appellant will be entitled for an additional compensation of Rs.12,640/- , rounded to Rs. 12,700/- (Rupees Twelve Thousand and seven hundred), which will carry interest at 7% from the date of petition till realisation. The same shall be deposited within a period of two months. The appeal is thus partly allowed. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, KNC/- (JUDGE)