IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 MACA.No. 603 of 2008() ---------------------- OPMV.1885/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT(S): PETITIONER ------------------------ BINOD SCARIA, S/O.C.M.SCARIA MADATHIPARAMBIL HOUSE, VELLOTHURUTHI KARA PANACHIKKADU VILLAGE. BY ADV. SRI.K.A.HASHIM RESPONDENT(S): RESPONDENTS -------------------------- 1. BINO SCARIA, S/O.V.O.SCARIA VALUPARAMBIL HOUSE, CHINGAVANAM KARA NATTAKOM VILLAGE. 2. THE UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, OOPPOTTIL BUILDINGS K.K.ROAD, KOTTAYAM. ADV. SRI.M.A.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2009, ALONG WITH MACA NO. 1317 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ============================== M.A.C.A.Nos.603 & 1317 of 2008 - F =============================== Dated this the 27th day of February, 2009. J U D G M E N T Basant, J. These appeals are directed against a common award passed by the Tribunal directing payment of a total amount of Rs.1,50,586/- to the claimant along with interest at the rate of 7% per annum. He was the pillion rider in a motor cycle. Claim was against the owner cum driver and insurer of the motor cycle. The tribunal had directed that the 2nd respondent insurer must pay the amount to the claimant. 2. Insurer has come up in appeal against that direction to him in M.A.C.A.No.1317/2008 and the claimant has come up in appeal with M.A.C.A.No.603/2008 challenging the quantum of compensation awarded by the Tribunal. 3. In the light of the decision in New India Assurance Company Ltd. v. Hydrose (2008 (3) KLT 778) it is conceded that the insurer's liability under a package policy to satisfy the claim of the pillion rider cannot be disputed. In these circumstances, M.A.C.A.No.1317/2008 can only be dismissed. M.A.C.A.Nos.603 & 1317 of 2008 - F 2 4. The claimant/appellant in M.A.C.A.No.603/2008 was aged 27 years on the date of the accident i.e., 13.7.2003. He claims to be employed as a sales executive with a private company. He claimed that he was earning an income of Rs.6,000/- per mensem. He had comminuted fracture of left tibial plateau. He was inpatient for a total period of 24 days in two spells, from 13.7.2003 to 30.7.2003 at the first instance, and later from 9.8.2004 to 13.8.2004. He had undergone procedures including bone grafting under anaesthesia in the first spell. In the second spell, the implants were removed under spinal anaesthesia. At the time of discharge, after the first admission all movements of the knee joint were painfully restricted, it is noted. At the time of the second discharge, there were complaints of pain over the knee joint on walking for long distances. 5. The Tribunal on an anxious consideration of all the relevant inputs came to the conclusion that the appellant is entitled for a total amount of Rs.1,50,586/- along with interest and costs as per the the details shown below: M.A.C.A.Nos.603 & 1317 of 2008 - F 3 1. Pain and suffering : 15,000/- 2. Loss of earnings : 11,200/- ( 2800 X 4) 3. Transportation expenses : 3,000/- 4. Damage to clothing : 500/- 5. Expenses for bystander : 3,000/- 6. Loss of earning capacity consequent to physical disability. : 42,336/- (2800 X 12 X 18 X 7/100) 7. Loss of amenities : 15,000/- 8. Medical expenses : 59,550/- (against bills produced) 9. Compensation for extra nourishment : 1,000/- ---------------------- Total : Rs.1,50,586/- ============= 6. Appellant/claimant claims to be aggrieved by the impugned award. What is the grievance? Called upon to explain the precise nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant first of all contends that the Tribunal erred grossly in accepting the monthly income at Rs.2,800/- per mensem. The appellant was getting an amount of Rs.6,000/- per meneum and monthly income reckoned by the Tribunal is obviously inadequate, contends the counsel. 7. There is no semblance materials made available to show that the appellant was in fact working as a sales executive or was drawing a total income of Rs.6,000/- per mensem. Even M.A.C.A.Nos.603 & 1317 of 2008 - F 4 though it is asserted that he is a graduate, nothing is produced in support of that assertion also. It is not explained why even a salary certificate is not placed before courts, at least at the appellate stage. We are, in these circumstance, satisfied that the Tribunal cannot be found fault with for not accepting Rs.6,000/- as monthly income. We are of opinion that it could safely be assumed that the appellant was earning an income of at least Rs.3,000/- per mensem. That inference appears to be prudent, probable and reasonable. Reckoning the monthly income as Rs.3,000/-, we are satisfied that the appellant shall be entitled for a further amount of Rs.800/- ((3,000 - 2800) X 4) under the head of loss of earning and a further amount of Rs.3,024/- under the head, loss of earning capacity consequent to physical disability i.e., 3,000 X 12 X 18 X 7/100 - 42,336, already awarded. 8. We take note of the surgical procedures undergone under anaesthesia on two occasions and the nature of injuries sustained by the victim. We also note the period of hospitalisation and complaints about pain in the knee, long after discharge from the hospital. We are in these circumstances, M.A.C.A.Nos.603 & 1317 of 2008 - F 5 satisfied that the compensation under the head pain and suffering is anadequate and the appellant is entitled to a further amount of Rs.5,000/- (20,000 in all). 9. Even though in Ext.A9 medical certificate has been produced (issued by a medical board to whom the appellant was not referred by the Tribunal), it is seen opined that partial disability of 40% was suffered, there is significant absence of intrinsic data in Ext.A9 to persuade any prudent mind to accept that assessment of the extent of disability. Even the basis of that assessment is not revealed in Ext.A9 and there is no evidence to prove Ext.A9 by examining any one of the doctors concerned. The court below in these circumstances, reckoned only 7% as the extent of disability. Of course, satisfactory data to accept the disability at 40% or to reduce the same to 7% are not available. But we have gone through the discharge summary which has been produced as Exts.A7 and A8 in which it is stated that pain on the knee is the disability or debilitatory factor. We do not in these circumstances find reason to interfere with the conclusion of the Tribunal that 7% disability alone can be taken note of and accepted by the tribunal. But for such disability suffered by the M.A.C.A.Nos.603 & 1317 of 2008 - F 6 young appellant aged 27 years, we are satisfied that a higher amount of compensation could safely been awarded under the head, loss of amenities. Only an amount of Rs.15,000/- has been awarded. We note that the movement of the young appellant must have been restricted and he will have to live with that disability impairing the quality of enjoyment of his rest of life. In these circumstances, we are persuaded to award a higher amount of Rs.25,000/- under the head of loss of amenities (Rs.10,000/- more). 10. We are not satisfied that the impugned award under any other particular head deserves upward modification on the basis of materials available. We do note that the appellant was grossly responsible for not placing adequate materials before the Tribunal to compute quantum of compensation authentically and authoritatively. In such circumstances, the minimum irreducible quantum of compensation alone can be awarded by the courts. The appellant has to blame himself for not placing better materials available before court, if he feels that if he is actually entitled to any higher amount. 11. The above discussion leads us to a conclusion that the M.A.C.A.Nos.603 & 1317 of 2008 - F 7 appellant is entitled to further amount of Rs.18,824/- as per the details shown below: 1. Pain and suffering : 5,000/- more (20,000 - 15,000) 2. Loss of earnings : 800/- ( 3,000 X 4 - 11,200) 3. Loss of earning capacity : 3,024/- consequent physical (3000 X 12 X 18 X disability 7/100 - 42,336) 4. Loss of amenities : 10,000/- more (25,000 - 15,000) ---------------------- Total Rs.18,824/- ============= Rs.18,824/- more in addition to the amount already awarded by the Tribunal. Needless to say, interest shall be payable as directed by the tribunal on the entire amount of compensation from the date of the petition. 12. In the result, M.A.C.A.No.603/2008 is allowed in part to the above extent and M.A.C.A.No.1317/2008 is dismissed. Sd/- R.BASANT, JUDGE. Sd/- C.T.RAVIKUMAR, JUDGE. bkn/-