IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 MACA.No. 373 of 2006() ---------------------- OP(MV).153/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER --------------------------------------------------------------- THRESIAMMA ANTONY, W/O.ANTONY, VATTATHIL HOUSE, MARARIKULAM SOUTH PANCHAYATH WARD NO.XI, THUMPOLY P.O., ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): RESPONDENTS -------------------------------------------------- 1. SHIJU P.S., S/O.SOMAN, PUTHENVELI, MARUTHORVATTOM, CHERTHALA. 2. JOY M.V., S/O.M.J.VARGHESE, MALIAKKAL HOUSE, MAYITHARA P.O., CHERTHALA. 3. MANAGER, UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, CHERTHALA. R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- M.A.C.A.No.373 of 2006 ---------------------------------------------------- Dated this the 21st day of July, 2011 Judgment Basant, J. Claimant is the appellant. She, a woman aged 46 years had suffered personal injuries in an accident which took place on 12.10.2001. She claimed a total amount of Rs.6 lakhs as compensation. The Tribunal by the impugned award directed payment of an amount of Rs.1,55,600/- as compensation as per the details given below: 1. Loss of earnings(Rs.1500x8) - Rs.12,000/- 2. Treatment expenses - Rs.65,300/- 3. Transportation - Rs.4,000/- 4. Bystander's expenses - Rs.5,000/- 5. Extra-nourishment - Rs.2,000/- 6. Damage to clothing - Rs.500/- 7. Pain and suffering - Rs.10,000/- 8. Disability (Rs.1500x12x20/100x13) - Rs.46,800/- 9. Loss of amenities - Rs.5,000/- 10.Loss of earning capacity - Rs.5,000/- ------------------- Total - Rs.1,55,600/- ============ Interest was awarded at 6% per annum. 2. The challenge is only on the ground that the quantum of MACA 373/06 2 compensation awarded is not fair, adequate and reasonable. Called upon to be more specific, the learned counsel for the appellant first of all contends that the Tribunal erred in reckoning the monthly wages of th appellant, a coir worker, at Rs.1500/- per mensem. The claim of the appellant was that the monthly income was Rs.2000/- per mensem. Her employer was examined also. Salary certificate was also produced. But unfortunately, the Tribunal in spite of all such evidence reckoned the monthly income only at Rs.1500/- per mensem. Reluctance of the Tribunal to accept the assertion made by the appellant, in the facts and circumstances of the case is unjustified, contends counsel. Counsel in this context draws our attention to the fact that even in respect of a non-earning person, clause 5 of Second Schedule permits Tribunal to draw the presumption of prudence that monthly income can be reckoned at Rs.1250/- as early as in 1994. We find merit in the challenge raised. We are satisfied that the Tribunal should have accepted the assertion of the appellant- claimant that her monthly wages was Rs.2,000/-. 3. She had suffered serious injuries which led to loss of MACA 373/06 3 three toes. She was inpatient for a period of 53 days. She had undergone five surgeries. Skin grafting was also done. When she was examined as P.W.1 before the Tribunal, the Tribunal had alertly made certain observations about the nature of the disability. The details available must have conveyed to the Tribunal. The pain and suffering endured by the claimant. In spite of this, only an amount of Rs.10,000/- has been awarded by the Tribunal as compensation for pain and suffering. In the facts and circumstances of this case, we are certainly of the opinion that an amount of Rs.20,000/- could safely have been fixed as the compensation payable for pain and suffering. 4. Physical disability was suffered by the claimant. Primarily, the disability is in the loss of three toes. In addition, there is gross disfiguration of the left foot, as noted by the Tribunal. The appellant was sent to the medical board and the medical board assessed the permanent partial disability to the tune of 40%. Considering the nature of the physical disability - loss of three toes and disfiguration of one foot and one leg, it is not possible to precisely ascertain how the medical board came to MACA 373/06 4 the figure of 40%. The learned counsel for the insurance company draws our attention to Part II of the Schedule I of the Workmen's Compensation Act, particularly, item No.24 which suggest that the loss of toes and one foot can be deemed to result in reduction in earning capacity to the tune of 20%. The learned counsel for the insurance company further draws our attention to the various entries in Section B of Part II which indicate the extent of loss of earning capacity that is deemed to result from loss of toes. In any view of the matter, we are of the opinion that the presumption of prudence drawn by the Tribunal that the proved physical disability could have resulted only in reduction in earning capacity to the tune of 20% is absolutely fair, just and reasonable and the same does not warrant interference. 5. For physical disability, compensation is seen awarded on two grounds - for disability and for loss of earning capacity. Under the head of disability, an amount of Rs.46,800/- (1500X12X13X20/100) has been awarded. In addition, an amount of Rs.5000/- has been awarded under the head of loss of MACA 373/06 5 earning capacity. We note that further amount of Rs.5000/- has been awarded under the head loss of amenities also. Separate awards under the head of disability and loss of earning capacity in addition to the amount awarded under the head of loss of amenities does not, at any rate, appear to be correct. We take note that the appellant has received an amount of Rs.51,800/- (Rs.46,800 +5,000) as compensation under the head of loss of earning capacity. The increase in the amount of monthly wages reckoned will be reflected in the computation of compensation under the head of loss of earning capacity. 6. For loss of amenities, only an amount of Rs.5000/- has been awarded. Even though we are not able to agree with the computation of physical disability at 40% by the medical board, we take note of the totality of the circumstances. We take note that the appellant is a woman aged 46 years. We take note that she has indisputably gross disfiguration in addition to physical disability. Only an amount of Rs.5,000/- was awarded under the head of loss of amenities. We are satisfied, in these circumstances, a sum of Rs.20,000/- should have been awarded MACA 373/06 6 as reasonable compensation for loss of amenities. 7. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.39,00/- as compensation in addition to the amounts already awarded by the Tribunal as per the details shown below: 1. Loss of earnings (8 x 2000 minus 12000) -Rs.4,000/- 2. Pain and suffering (Rs.20000 minus 10,000) -Rs.10,000/- 3. Reduction in earning capacity (2000x12x13x20/100 minus 51800) -Rs.10,600/- 4. Loss of amenities (Rs.20000 minus 5000) -Rs.15,000/- ----------------- Total -Rs.39,600/- ========== Interest has been awarded only at the rate of 6% per annum. The learned counsel contends and we accept that interest must have been awarded at least at the rate of 7.5% per annum on the entire amount due from the date of the petition to the date of payment/deposit. 8. In the result: a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.39,600/- in addition to the amounts already awarded by the MACA 373/06 7 Tribunal. c) We direct that interest be paid on the entire amount of compensation at the rate of 7.5% from the date of the petition to the date of payment/deposit. d) All other directions of the Tribunal are upheld. R. BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd MACA 373/06 8