IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 MACA.No. 694 of 2003 ---------------------- OPMV.1763/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT: APPELLANT/CLAIMANT -------------------------------- BINU S/O. PAUL, KANDANALIL HOUSE, PATTIMATTOM POST, VALAMPOOR KARA, PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS: RESPONDENTS 1 TO 3 --------------------------------- 1. MANAGING PARTNER, M/S.CONCRETE AGGRIGATES INDUSTRIES, KUNNAMODE, PATTIMATTOM P.O. 2. ARJUNAN S/O. NARAYANAN NAIR, CHENNOTHU HOUSE, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK. 3. M/S. UNITED INDIA INSURANCE CO. LTD., MARIKKAPARAMBIL BUILDINGS, LAYAM ROAD, TRIPPUNITHURA 682 301. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.694 of 2003 ------------------------------------- Dated this the 3rd day of April, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He suffered personal injuries in a motor accident which occurred on 21.09.1999. He was aged 22 years on the date of the accident. He claimed to be a conductor earning a monthly income of Rs.4,500/-. A total amount of Rs.7 lakhs was claimed as compensation. Multiple fractures were suffered by the appellant including odontoid fracture indirect optic nerve injury right side, fracture of left humerus, left distal radius and left ulna and right clavicle and left radius and ulnar nerve palsees and complete loss of vision of right eye. He was an inpatient for a period of 15 days. He had to continue treatment as outpatient for a long further period. He had to undergo Physiotherapy also. He had suffered permanent physical disability. He had orthopaedic as also visual disability. Visual disability on account of complete loss of vision of right eye was assessed to be 30%. Orthopedic disability on account of the multiple fracture suffered was M.A.C.A No.694 of 2003 2 assessed to be 35%. Doctors who issued the relevant disability certificates were examined before the Tribunal. Before the Tribunal oral evidence of PWs 1 to 5 and Exts.A1 to A25 were marked. 2. The Tribunal on an anxious consideration of all the available inputs proceeded to pass the impugned award directing payment of the following amounts: i) Pain and suffering : Rs.25,000/- ii) Reduction in earning capacity : (1,800X12X17X30/100) : Rs.1,10,160/- iii) Loss of amenities : Rs. 30,000/- iv) Medical expenses : Rs.60,000/- (Against bills produced) v) Transport to hospital : Rs.2,350/- vi) Damage to clothing : Rs.3,000/- vii) Bystander's expenses & extra noursihment : Rs.2,000/- viii) Loss of earnings (6 X 1800) : Rs.10,800/- ................... Total : Rs.2,40,610/- ................... M.A.C.A No.694 of 2003 3 The Tribunal further directed that the said amount be paid along with interest @ 9% per annum. 3. The appellant claims to be aggrieved by the impugned award. The learned counsel for the appellant assails the impugned award on various grounds. 4. First of all it is contended that the monthly income of the appellant reckoned by the Tribunal at Rs.1,800/- is too low and perversely unrealistic. There is clinching evidence to show that the appellant was a conductor at the relevant time. The counsel points out that the second schedule to the Motor Vehicles Act permits the Tribunals to assume that even a non earning person can be assumed to earn Rs.1,250/- per mensem. The income of Rs.1,800/- for a young qualified conductor aged 22 years is perverse, submits the learned counsel. 5. We find merit in that contention. We feel that it would be absolutely safe to assume that the monthly income of the appellant was Rs.3,000/- per mensem. In coming to this conclusion we take note of the conductor's licence produced by the appellant as also a certificate issued by his employer making a claim that he was being paid Rs.4,500/- per mensem. That certificate has not been proved satisfactorily. At any rate, we are M.A.C.A No.694 of 2003 4 satisfied that a presumption of prudence can be drawn that the appellant must have been earning an income of Rs.3,000/- per mensem. 6. The learned counsel for the appellant next contends that the Tribunal erred in reckoning the extent of reduction in earning capacity at 30%. The two certificates issued by the doctors who were also examined before the Tribunal shows that 30% visual disability is there consequent to complete loss of one eye vision. Orthopedic disability had also been suffered. That of course is the physical disability. This physical disability is bound to have reflection on the earning capacity of the appellant as also impairment in the quality of enjoyment of life which the appellant, a 22 year young conductor, can aspire to lead in future. The Tribunal erred in assuming that only 30% disability has been resulted. As to what is the composite resultant reduction in earning capacity, there is no clinching and convincing data. We take note of the certificate issued by the doctors of the two disciplines. We are satisfied, in these circumstances, that it would be safe to assume that the appellant has suffered reduction in earning capacity to the extent of 45% on account of the physical disabilities suffered. Even in the M.A.C.A No.694 of 2003 5 absence of better, more specific and crisp evidence on the point, we feel that 45% can safely be reckoned as the total reduction in earning capacity. 7. The counsel contends that compensation awarded under the head loss of amenities as Rs.30,000/- is not adequate. We note that an amount of Rs.25,000/- has been awarded under the head `pain and suffering' and a further amount of Rs.30,000/- for loss of amenities. We are not persuaded to agree that any further amount need be awarded under this head. We have already taken the view that the monthly income can be reckoned at Rs.3,000/- per mensem. For loss of earning also, proportionately higher amount of compensation will have to be awarded. We are not persuaded to interfere with the amounts awarded under any other heads. 8. The above discussions lead us to the conclusion that the appellant is entitled for the following further amounts as compensation in addition to the amounts awarded by the Tribunal: 1. Loss of earning capacity (3000 x 12 x 17 x 45/100 - Rs.2,75,400/- minus Rs.1,10,160/-) - Rs.1,65,240/- M.A.C.A No.694 of 2003 6 2. Loss of earnings (6 x Rs.3,000/- minus Rs.10,800/-) - Rs.7,200/- ------------------- Total - Rs.1,72,440/- ======== 9. Needless to say, the entire amount of compensation shall carry interest at the rate awarded by the Tribunal from the date of the petition. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-