IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 MACA.No. 2837 of 2008 ----------------------- OPMV.282/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: PETITIONER ------------------------ SIVADAS, S/O POTTATHIL UNNIKRISHNAN NAIR VASUPURAM, MATTATHUKUNNU, KODAKARA(VIA). BY ADV. SRI.T.N.MANOJ RESPONDENTS: RESPONDENTS -------------------------- 1. HENRY JOSEPH, S/O.PUTHENVEETTIL INASU, 3/448,PUDUKKAD, VIYOOR, THRISSUR. 2. BABU, S/O KOTTANKUNNAL MARKOSE, NJANDUKULAM, VADAKKANCHERRY, PALAKKAD. 3. THE MANAGER UNITED INDIA INSURANCE COMPANY LTD, THRISSUR. 4. M.D.NARAYANAN, S/O.MALAIKKAL DAMODARAN NAIR, KAVIL, KODAKARA POST, THRISSUR. ADV. SRI.D.ANIL KUMAR FOR R4 SRI.T.J.LAKSHMANAN IYER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 2837 OF 2008 ============================ Dated this the 3rd day of August 2011 JUDGMENT R.Basant, J. The claimant is the appellant. He suffered injuries in a motor accident which took place on 24/8/2002. He was the driver of the vehicle at the relevant time. He was aged 32 years. He was an inpatient for a period of 90 days. He claimed a total amount of Rs.5 lakhs as compensation. The Tribunal by the impugned award directed payment of only an amount of Rs.1,81,600/- as compensation as per the details shown below: Sl.No. Head under which claim made amount awarded 1 Loss of income for 6 months @Rs.2500/- 15000 2 Medical bills 85600 3 Bystander expenses(90 days) 9000 4 Transportation 2000 5 Pain and suffering 30000 6 Loss of amenities 40000 Total 1,81,600/- MACA 2837/2008 2 2. The appellant claims to be aggrieved by the impugned award. The challenge is directed only against the quantum of compensation. Called upon to explain and be specific, the learned counsel for the appellant contends that the Tribunal, even after coming to the conclusion that the appellant had some disability, did not award any amount under the head of reduction in earning capacity. The learned counsel for the appellant further submits that the Tribunal erred in fixing the monthly income as Rs.2500/-. The 32 year old claimant even if he were earning only Rs.2500/- as a driver at the time of the accident, the Tribunal should have taken note of the inevitable reality of improvement in prospects in his employment, it is submitted. 3. There was no authentic evidence available about the extent of physical disability. An earlier Bench directed the appellant to appear before the Medical Board for authentic evaluation of the extent of physical disability. Before the Tribunal, evidence of physical disability was adduced, but the same was not accepted by the Tribunal and it is in these circumstances that an earlier Bench as per order dated 5/12/2008 directed the appellant to appear before the Medical Board. The report of the Medical Board has been received. We mark the same as Ext.C1. It is unnecessary for us to extract the details in Ext.C1. Suffice it to say that it shows that the whole body disability is 49.5%. 44% was shown as the MACA 2837/2008 3 neurological disability, 8% was shown as the disability on oral and maxiofacial evaluation and 3% was the disability assessed orthopaedically. The total of 55% was reduced to 49% by using the combined formula. It will be apposite to refer to one or two observations only in the Medical Board report. Patient can rise to a standing position and can walk some distance with difficulty and without assistance but this is limited to level surfaces. Patient can use the left upper extrimity but this is limited for self care activities only. He suffers severe recurring disorder of seizures of such frequency that will limit activity to those that are supervised protected or restricted. This must give the court an idea about the actual physical disability suffered by him and the possible reduction in earning capacity as a driver because of the physical disability. 4. Taking into account the nature of employment and the possible income of the appellant, we are satisfied that Rs.3,000/- can safely be reckoned as relevant monthly income for the purpose of computation of compensation for reduction in earning capacity. 2500/- was the income claimed at the time of the accident. We reckon the monthly income as Rs.3,000/- for the purpose of assessing compensation for reduction in earning capacity taking into account the inevitable future increase. MACA 2837/2008 4 5. We are satisfied that the amounts awarded under the other heads are correct and do not warrant any interference at our hands. No compensation having been awarded under the head of reduction in earning capacity. We are satisfied that an appropriate amount must be awarded under that head. We hold that the appellant is entitled to an amount of Rs.2,85,120/-(3000x12x16x49.5/100)as compensation for reduction in earning capacity. 6. In the result, a)this appeal is allowed in part. b)The appellant is found entitled to a further amount of Rs.2,85,120/- in addition to the amount already awarded by the Tribunal. c)We direct that interest be paid on the entire amount of compensation for the period and at the rate directed by the Tribunal. d)All other directions of the Tribunal are upheld. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. TRUE COPY P.S. TO JUDGE MACA 2837/2008 5