IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 MACA.No. 2024 of 2006() ----------------------- OPMV.1364/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: ---------------------------------------- SRI.A.C.JOSEPH,S/O.LATE CLETUS, ARAKKAL HOUSE, DEVASWAMPARAMBU,ELAMKARA,COCHIN-26. BY ADVS. MR.K.S.SAJEEV KUMAR, MR.LAJI SAM ZACHARIAH. RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. M.ASOKAN,PROPRIETOR, GIJAS RUBBERS DEVELOPMENT AREA, EDAYAR,BINANIPURAM. 2. SHAJIMON C.M., CHETHIPUZHA HOUSE, PATHAR (P.O.), NILAMBOOR, MALAPPURAM DISTRICT. 3. THE NEW INDIA ASSURANCE CO. LTD. R.S.ROAD, ALUVA. R1 & R2 BY ADV. MR.VIJU ABRAHAM R3 BY ADV. MR.S.MAMMU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A No.2024 of 2006 ---------------------------------------- Dated this the 14th day of January 2010 J U D G M E N T Basant,J Claimant is the appellant. He suffered injuries in a motor accident that took place on 18/03/2001. He suffered multiple serious injuries in the accident. He was rendered totally disabled as a result of the accident. He was walking along the side of the road when the vehicle belonging to his employer allegedly knocked him down. He claimed a total amount of Rs.9,00,000/- as compensation. The tribunal, by the impugned award (by which certain other claims of persons injured in the same accident were also disposed of), directed payment of a total amount of Rs.6,30,830/- as per the details given below. Rs. Treatment expenses 1,50,820/- Disability 2,93,760/- (Rs.1,800/- x 12 x 17 x 80/100) Loss of earning 18,000/- Pain and suffering 50,000/- Loss of amenities 50,000/- Attendant's charges 10,000/- M.A.C.A No.2024/06 2 Future attendant's charges 25,000/- Disfiguration 10,000/- Extra nourishment 20,000/- Transportation charges 3,000/- Damage to clothings 250/- Total 6,30,830/- 2. The claimant/appellant is aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned awardonly under the head of disability. The learned counsel contends that the tribunal had erred in reckoning Rs.1,800/- alone as the monthly earnings whereas the oral evidence of the employer PW3 and the oral evidence tendered by the claimant before the Commissioner who examined him shows that his monthly income was Rs.3,500/-. No certificate is produced to prove the salary of the claimant. Certificate Ext.A8 produced by another injured in the case shows that he was working as a supervisor and as per Ext.A8 he was getting a salary of Rs.3,000/-. The learned counsel for the appellant argues that, the assertion of the claimant about his monthly income which is supported by the assertions of PW3 on oath should have been M.A.C.A No.2024/06 3 accepted by the tribunal. At any rate, acceptance of the amount of Rs.1,800/- alone as monthly income is totally unjustified, argues the learned counsel. The learned counsel for the appellant points out that as early as in 1994, the 2nd schedule to the M.V.Act realistically accepts that even for a non-earning person, the notional income can be reckoned at Rs.1,250/- per mensum . 3. We find merit in the contention of the learned counsel for the appellant. We are satisfied that for the claimant herein also an amount of Rs.3,000/- can be reckoned as the monthly notional income as is certified in the case of another supervisor in Ext.A8. 4. The learned counsel for the appellant then contends that the tribunal erred in arbitrarily reducing the percentage of disability from 100% certified in Ext.A22 by the medical board to 80% while computing the quantum of compensation. The learned counsel for the appellant contends that there was absolutely no justification to reduce the total disability from 100% to 80% by the tribunal. We note that Ext.A22 was issued by a medical board which was constituted as per the directions of the tribunal. It consisted of three doctors including PW4, an orthopedic surgeon. The details given in Ext.A22 reveals that M.A.C.A No.2024/06 4 though conscious, the claimant is immobile and totally bid ridden. He lies down and is not able to move his legs. There is no movement below the wrist and no movement of fingers, it is certified. There is no better evidence to come to a different conclusion than what has been stated in Ext.A22. Evidence of PW4 confirms the conclusions in Ext.A22. We are, in these circumstances, satisfied that the tribunal was not justified in reducing the total disability suffered by the claimant from 100% to 80% without any valid reason. 5. The learned counsel for the insurance company contends that sufficient amounts have been awarded under the other heads and the total compensation of Rs.6,30,830/- awarded is just and reasonable. We are satisfied that the amounts awarded under the other heads are reasonable considering the nature of disability that has resulted. We find merit in the contention of the learned counsel for the insurance company that since total disability is being accepted by this court, no amount is liable to be awarded under the head of loss of earnings. We find merit in the contention. 6. The above discussions lead us to the conclusion that the appellant/claimant is entitled to a further amount of Rs.3,01,000/- in addition to the amounts awarded by the tribunal M.A.C.A No.2024/06 5 as compensation. i.e Reduction in earning capacity consequent to disability = Rs.3,000/- x 12 x 17 = Rs.6,12,000/- minus Rs.2,93,760/- minus Rs.18,000/- (loss of earnings) = 3,00,240/- The total amount due will hence be Rs.9.31,070/- (i.e. Rs.6,30,830/- + Rs.3,00,240/-) 7. The claim raised by the claimant in the claim is for Rs.9,00,000/-. We are satisfied that the claim is, in these circumstances, liable to be allowed in full. 8. In the result, a) This appeal is allowed. b) The claimant is found entitled to a total amount of Rs.9,00,000/- as claimed. c) Interest on the entire amount and cost shall be liable to be paid as directed by the tribunal. d) Appropriate further directions regarding deposit/release shall be issued by the tribunal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr M.A.C.A No.2024/06 6 M.A.C.A No.2024/06 7 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009