IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 MACA.No. 2295 of 2009() ----------------------- OPMV.182/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ------------------------ SALIMKUMAR, AGED 37 YEARS, S/O.SUKUMARAN, MEMANA HOUSE, P.O.VADAKEKARA, NEENDOOR, N.PARAVOOR. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENT(S): --------------- 1. JOSHY, S/O.PADATHUMPARAMBIL VENU, P.O.PERUMPADANNA, N.PARAVOOR. 2. PRABHAKARAN, S/O.MULAKKAKATH THANKAPPAN, P.O.VADAKKEKARA, PATTANAM, N.PARAVOOR. 3. NATIONAL INSURANCE CO. LTD., MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, N.PARAVOOR. 4. KUNJUMUHAMMED, S/O.KALLIYATH KOMU HAJEE, PERUMANA, EDARIKODE, TIRUR, MALAPPURAM DISTRICT. 5. UNITED INDIA INSURANCE CO. LTD., BRANCH, SUBKA BUILDING, THAZHEPALAM, TIRUR-DO. DO. 6. SAIDALAVI, S/O.KUZHIKKATTIL KUNNUMOIDHEEN, PERUMANNA, TIRUR, MALAPPURAM DISTRICT. ADV. SRI.K.M.FIROZ FOR R4 & R6 SRI.E.M.JOSEPH FOR R3 SRI.MANSOOR.B.H. FOR R1 SRI.JOHN JOSEPH VETTIKAD FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- C.M.Appl.No.2686 of 2009 & M.A.C.A.No.2295 of 2009 ---------------------------------------------------- Dated this the 11th day of July, 2011 Order/Judgment Basant, J. C.M.Appl.No.2686 of 2009 1. This petition is to condone the delay of 95 days in filing a M.A.C.A. Heard the learned counsel. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A.No.2295 of 2009 : 2. The claimant/injured is the appellant. He claimed a total amount of Rs.4 lakhs as compensation for the loss suffered by him consequent to a road traffic accident which took place on 23/10/03. He was a pillion rider in a motorcycle. Respondents 1 and 2 are the rider and the owner of the said motorcycle. The 3rd respondent is the insurer. Initially, only respondents 1 to 3 were arrayed as parties. Respondents 1 and 2 remained ex parte. Respondent No.3 contended that the `Act only' policy issued by the 3rd respondent in respect of the two wheeler did not cover liability of the pillion rider. Thereupon, respondents 4 to 6 were arrayed as parties. They are driver, insurer and owner of the other motor vehicle involved in the accident. The CM APPl.2686/09 & MACA 2295/09 2 Tribunal, by the impugned award, came to the conclusion that the accident occurred solely on account of the negligence of the motorcycle. The Tribunal accepted the contention of the 3rd respondent that the 3rd respondent is not liable under the `Act only' policy to pay any compensation to the petitioner, the pillion rider, in the two wheeler. 3. The Tribunal thereupon proceeded to consider the quantum of compensation payable. An amount of Rs.1,32,400/- was ordered to be paid as per the details shown below: 1. Loss of earnings - Rs.6,000/- (Rs.1,500/- x 4) 2. Pain and sufferings - Rs.20,000/- 3. Medical Expenses - Rs.64,000/- (against bills produced) 4. Hospital Expenses - Rs. 1,900/- (19 days x 100) 5. Transportation charges - Rs. 1,000/- 6. Loss of amenities - Rs.15,000/- 7. Loss of earning capacity (18,000 x17 x 8/1000) Rs.24,480/- rounded to - Rs.24,500/- ------------------- Total - Rs.1,32,400/- ======== CM APPl.2686/09 & MACA 2295/09 3 4. Respondents 1 and 2 have not entered appearance. The learned counsel for the appellant contends that the quantum of compensation awarded is too low. Called upon to explain the nature of challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant, first of all, contends that the monthly income reckoned for the purpose of computation of compensation i.e., Rs.1,500/- per mensem is too low. The accident took place on 23/10/03. The injured claimant is said to be a Carpenter. We are satisfied that an amount of Rs.2000/- can safely be reckoned as the monthly income of the appellant. Even in the absence of better materials to prove the quantum of income, we are satisfied that such enhancement is perfectly justified taking into account the entries contained in clause 6 of schedule II of the Act which permits the court to assume that Rs.1250/- is the monthly earnings of even an unemployed person. 5. The loss of earnings is taken only for four months. The appellant had claimed earnings for a period of one year. There is absolutely no material to prove precisely the period of unemployment. We note that the injuries mentioned in Ext.A3 CM APPl.2686/09 & MACA 2295/09 4 wound certificate are bound to affect his earnings for a long period of time. Taking all the circumstances into account, we reckon that six months can safely be determined as the period of enforced unemployment. 6. For pain and suffering, medical expenses, Bystander's expenses, Transport to hospital etc. we find no reason to interfere with the amount awarded by the Tribunal. 7. The learned counsel for the appellant contends that 15% must have been reckoned as the percentage of reduction in earning capacity. In support of this, Ext.A5 is pressed into service. Ext.A5 disability certificate has not been proved satisfactorily by examining the doctor who issued the same. The contents of Ext.A5 only shows that the petitioner has a cranial defect at the left temporal region and post traumatic headache and memory impairment amounting to a total permanent disability of 15%. The Tribunal did take note of Ext.A5 but did not blindly and mechanically reckon 15% as the reduction in earning capacity. The appellant is stated to be a Carpenter. Thus 15% disability mentioned in Ext.A5, we agree with the Tribunal cannot be reckoned, in the absence of any better evidence to have CM APPl.2686/09 & MACA 2295/09 5 resulted any permanent reduction in earning capacity to the extent of 15%. However, the appellant will be entitled to get Rs.2000/- reckoned as his monthly income and the compensation awarded under the head of loss of earnings will have to be re- determined. For loss of amenities Rs.15,000/- has already been awarded. Counsel argued that higher amount must have been awarded considering Ext.A5 disability certificate. We take note of the disabilities mentioned in Ext.A5. We are of the opinion that an amount of Rs.20,000/- can be awarded under the head of loss of amenities also. Thus, the appellant is entitled to a further amount of Rs.19,140/- as compensation as per the details shown below: 1. Loss of earnings (2000 x 6 minus 6000) - Rs.6,000/- 2. Loss of amenities (Rs.20,000 -15,000) - Rs.5,000/- 3. Loss of earning capacity (2000x12x17x8/100) (32640 minus 24500) - Rs.8140 ------------- Total Rs.19,140/- ======== Learned counsel for the appellant attempts to assail the finding CM APPl.2686/09 & MACA 2295/09 6 on the question of negligence. We have gone through the award. The Tribunal has come to the conclusion that the rider of the motor cycle, going by Ext.A1, copy of F.I.R., which is accepted and relied on by the petitioner was attempting to overtake the other vehicle along the wrong side, i.e., left side and that he was solely responsible for the accident. The final report/Ext.A2 also confirms this. It is true that P.W.1 has tendered evidence and no contrary evidence has been tendered by anyone. But, we find that the Tribunal has considered the oral evidence of P.W.1 in the light of Exts.A1, copy of FIR and A2 charge sheet. The Tribunal has also taken note of the fact that initially no claim whatsoever was raised against respondents 4 to 6. The Tribunal noted that it is only after the petitioner realise that no compensation can be claimed from the third respondent-insurer that he attempted to place the blame at the door of the other vehicle also to claim compensation. In that view of the matter, the Tribunal has entered the finding that the rider of the motor cycle was solely responsible for the accident. We find no reason to interfere. 8. The above discussions leads to the conclusion that the impugned award is liable to be upheld on all other aspects. But CM APPl.2686/09 & MACA 2295/09 7 the appellant is entitled to a further amount of Rs.19,140/- as compensation. The appeal can succeed to the above extent. 9. In the result: a) The appeal is allowed in part. b) The impugned award is upheld on all other aspects. But it is held and direction is issued that the appellant is entitled to receive an amount of Rs.19,140/- as compensation from respondents 1 and 2 in addition to the amounts already awarded by the Tribunal along with interest on the enhanced amount also at the rate awarded by the Tribunal from the date of claim petition to the date of payment. R.BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd CM APPl.2686/09 & MACA 2295/09 8