IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 MACA.No. 68 of 2005() --------------------- OPMV.1008/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: PETITIONER IN OP(MV) ----------------------- JOY, S/O.ANTONY, KOKKADAN HOUSE, POTTA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENTS: RESPONDENTS IN OP(MV) --------------- 1. JANARDANAN, S/O.GANGADHARAN, KOLLARA HOUSE, P.O.POTTA. 2. MANAGER, THE ORIENTAL INSURANCE CO., SOUTH JUNCTION, CHALAKUDY. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & P.R.RAMACHANDRA MENON, JJ. ------------------------------------ M.A.C.A. No.68 of 2005 ------------------------------------- Dated this the 12th day of February, 2009 JUDGMENT R.BASANT, J. The claimant before the Tribunal is the appellant before us. He had claimed an amount of Rs.1.5 lakhs as compensation for the personal injuries suffered by him in a motor accident. The claimant was a press operator employed by the Appolo Tyres. He was earning an income of Rs.5,103/- per mensem at the time of the accident as shown in Ext.A11 certificate. He was aged 37 years on the date of the accident. The accident took place on 20.02.98. In two spells, the appellant was an inpatient for 5 days. Injury was suffered to the right knee. There was a disability to the right knee consequent to internal derangement. PW1-doctor assessed the permanent disability at 12% under Ext.A1 certificate. The claimant examined himself as PW2 and the said doctor as PW1. Exts.A1 to A12 were marked. 2. The Tribunal on a consideration of all the relevant circumstances sailed to the conclusion that the appellant is entitled only for an amount of Rs.27,950/- as compensation. The M.A.C.A. No.68 of 2005 2 appellant has come before this Court lamenting that the amount awarded is grossly and painfully inadequate and low. 3. Called upon to explain the specific grounds of challenge, the learned counsel for the appellant first of all contends that though the appellant was employed under a reputed company and salary certificate Ext.A11 was produced to show that his salary at the time of the accident was Rs.5,103/-, the Tribunal without any other justification except that the employer has not been examined, refused to accept and act upon the said certificate. There was no objection against the said certificate and it would be unreasonable to doubt the veracity and acceptability of that certificate, contends the learned counsel for the appellant. We are inclined to agree with the learned counsel for the appellant. We find no reason why Ext.A11 should not have been accepted by the Tribunal. The mere fact that the formal proof of Ext.A11 was not offered is according to us, too inadequate a reason not to accept the same at all. We accept that the monthly income can be reckoned as per Ext.A11 at Rs.5,103/-. For loss of earnings, of course the appellant would have only lost his leave, he is entitled to one month's income as held by the Tribunal, which we fix at Rs.5,103/-. M.A.C.A. No.68 of 2005 3 4. It is next contended that the quantum of compensation awarded for pain and suffering, loss of earning capacity consequent to disability and loss of amenities following disability are all perversely low. We take note of the injury as also the period of hospitalisation and the procedures that were undergone by the appellant for treatment. We agree with the learned counsel for the appellant that award of only an amount of Rs.4,000/- as compensation for pain and suffering is not adequate. We are satisfied that award of an amount of Rs.7,500/- shall be fair and reasonable in the circumstances. 5. There is no dispute now that disability was suffered by the appellant. The evidence of PW1 and Ext.A1 shows that the disability was fixed at 12%. We have been taken through Ext.A1 and the nature of the physical inadequacy suffered by the appellant as a result of the accident. The Tribunal accepted only 4% as disability. We must say that Ext.A1 does not inspire complete confidence. At any rate we are inclined to agree with the learned counsel for the appellant that a higher percentage of disability could certainly have been accepted by the Tribunal. Having considered all the relevant inputs, we are satisfied that 8% disability must have been suffered by the appellant. M.A.C.A. No.68 of 2005 4 6. This disability of 8% has had no reflection on the earning capacity of the appellant at present. There is no contention that his income by way of monthly salary has been reduced. Until the age of retirement, at the Bar it is submitted that it is 58 years, the appellant is not likely to suffer any reduction in earnings on account of such disability. But we agree with the learned counsel for the appellant that post retirement employment prospects would certainly be affected. We also agree with the counsel that until he retires from service, to meet the demands of his employment and to do the same work which he was earlier doing, extra strain and efforts will have to put in by him and he is certainly entitled for compensation on these grounds. Merely because his monthly income has not at present brought down, it may not be reasonable to deny him compensation for loss of earning capacity. As we have already noted, we are persuaded to agree that the monthly income can be reckoned at Rs.5,103/-. While adopting the multiplier we have to realistically note that there is no reduction in earning for the entire period till his retirement on superannuation. We take note of the possible reduction in earnings after he attains the age of superannuation, ie. 58 years. We also take note of the extra strain/effort which he may be obliged to put in to turn out M.A.C.A. No.68 of 2005 5 the same amount of work. We are, in these circumstances, satisfied that 8 can be adopted as the multiplier notwithstanding the fact that under the second schedule, for a person aged between 55 years and 60 years, 16 has been stipulated as the multiplier. 7. We now come to the claim for compensation under the head of loss of amenities. The physical disability suffered by him would certainly impair the quality of enjoyment of life which the appellant can aspire and only an amount of Rs.4,500/- has been awarded under this head. Even reckoning that physical disability to be 8%, considering the age of the appellant, we are satisfied that the appellant is entitled for a higher amount of compensation under the head loss of amenities and enjoyment of life. An amount of Rs.8,000/-, we are satisfied, shall serve the ends of justice. 8. The counsel finally contends that the rate of interest awarded is grossly inadequate. Interest only @ 6% is awarded. Such award at least must have been fixed @ 7.5%, contends the counsel. We are in agreement with the counsel. 9. The above discussions lead us to the conclusion that the appellant is entitled to the following further amounts by way of compensation. M.A.C.A. No.68 of 2005 6 i) Loss of earning - Rs.2,603/- [5,103 - 2,500] ii) Pain and suffering - Rs.3,500/- [7,500 - 4,000] iii) Loss of amenities and enjoyment of life - Rs.6,500/-[8,000 - 1,500] iv) Loss of earnings consequent to disability - Rs.19,991/- {5103 X 12 X 8 X 8/100] minus 19,200} = [39191 - 19200] = Rs.19991/- In the result: a) This appeal is allowed in part; b) It is held that the appellant is entitled to a further amount of Rs.32,594/- in addition to the amounts already awarded by the Tribunal; c) It is further directed that interest shall be payable on the total amounts @ 7.5% per annum from the date of the petition to the date of realisation. Cost as directed by the Tribunal shall also be paid. (R.BASANT, JUDGE) (P.R.RAMACHANDRA MENON) rtr/-