IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 MACA.No. 234 of 2003() ---------------------- OPMV.387/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/CLAIMANT: --------------------------------- K.N. RAMACHANDRAN NAIR, VADAKKEKAVANAKKATTU HOUSE, PEROOR KARA, PEROOR VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.P.V.GEORGE(ONAKKOOR) SRI.THOMAS JOHN P. RESPONDENT(S): 2ND & 3RD RESPONDENTS: ------------------------------------- 1. SURESH BABU, S/O. K.N.K. NAIR, POTTENKULAM, THIRUVANCHOOR, KOTTAYAM. 2. NATIONAL INSURANCE CO.LTD., KOTTAYAM. ADV. SRI.JOE KALLIATH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A. No.234 of 2003 ------------------------------------- Dated this the 3rd day of March, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.4,13,950/- as compensation for personal injuries suffered by him in an accident which took place on 17.12.1997. He was aged 57 years. He is a retired police constable. After his retirement from service as a police constable, he was allegedly leading a very active life. He was allegedly the President of a local Padasekharam committee. He was working as an agriculturalist also. His monthly income from such employment was Rs.4,000/- per mensem, it was claimed. He suffered injuries on the right leg. His right leg had to be amputated above the knee. He was an inpatient for 19 days in the hospital in two spells. In support of his claim for compensation, Exts.A7 to A11 were marked before the Tribunal. He examined himself as PW1. 2. The Tribunal on an anxious consideration of all the relevant inputs proceeded to hold that the appellant is entitled M.A.C.A. No.234 of 2003 2 only for an amount of Rs.79,831/- as compensation as per the details shown below: i) Loss of earnings : Rs. 3,000/- (amount of loss of income and monthly income not specified) ii) Pain and suffering : Rs.30,000/- iii) Loss of amenities of life : Rs.40,000/- iv) Transport to hospital : Rs. 500/- v) Damage to clothing : Rs. 450/- vi) Expenses for crushes : Rs. 1,500/- vii Medical expenses : Rs. 4,381/- (against bills produced) ................ total : Rs.79831/- ................. Interest was awarded @ 9% per annum. 3. Called upon to explain the nature of challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant submits that the Tribunal erred grossly in not awarding any amount under the head loss of earning capacity. This is incorrect. The Tribunal ought to have held that the appellant is healthy and is in a position to work and earn income even after his retirement from the Government M.A.C.A. No.234 of 2003 3 service as a police constable at the early age of 55 years. In not having awarded any compensation for loss of earning capacity, the Tribunal has erred grievously and that error warrants appellate interference, contends the learned counsel for the appellant. 4. The learned counsel for the insurance company also contends that the Tribunal was satisfied about the physical disability suffered. In the absence of better evidence, the Tribunal could not award any amount under the head loss of earning capacity and therefore the Tribunal, to work out justice, has awarded more than usual amounts under the head of pain and suffering and loss of amenities. That is why an amount of Rs.30,000/- has been awarded under the head of pain and suffering and Rs.40,000/- under the head of loss of amenities of life. In these circumstances, the total amount of Rs.79,831/- works out justice eminently and it is not necessary to award any further amount under the head of loss of earning capacity adopting the multiplier-multiplicand method. 5. We have rendered our anxious consideration to the contentions raised by the counsel for the rival contestants. We take note of the nature of injuries suffered and the period of M.A.C.A. No.234 of 2003 4 hospitalisation. For pain and suffering Rs.30,000/- has been awarded as compensation. But we are not persuaded to agree that the award of the same amount under the head of pain and suffering must persuade us to ignore the omission to award compensation under the head of loss of earning capacity or to reduce the amount payable under that head by any extent. So is the case with the amount awarded for compensation under the head of loss of amenities. Rs.40,000/- has been awarded under that head. A 57 year retired police constable has suffered traumatic amputation of the right leg above the knee. It may not be unreasonable to assume that he would continue to live for a further period of 15-20 years. He would be obliged to live with that major physical disability for the rest of his life during his old age. We are satisfied, in these circumstances, that the amount awarded under the head of loss of amenities (Rs.40,000/-) though definitely on the higher side warrants denial of compensation under the head of loss of earning capacity or reduction of the amount to be awarded under that head. 6. In the absence of better evidence, we find it safe to assume that the appellant must have been earning an income of at least Rs.1,250/- per mensem from his post retirement income M.A.C.A. No.234 of 2003 5 earning activity. There is no serious dispute regarding his age. He falls within persons of the age group of 55-60 years. Going by the second schedule of the Motor Vehicles Act, multiplier 8 can safely be accepted. 7. Coming to the percentage reduction in earning capacity, schedule 1 to the Workmen's Compensation Act is the safe guide to assess reduction in earning capacity in the absence of better, more cogent and authentic evidence. This has been recognised in the second schedule to the Motor Vehicles Act under entry 5 which specifically stipulates that in respect of permanent partial disability percentage loss of earning capacity as per schedule 1 of the Workmen's Compensation Act can be accepted. 8. We have no better evidence about the precise site of amputation. We are, in these circumstances, satisfied that notwithstanding opinion given by the doctor that the percentage disability is only 40%, reduction in earning capacity can safely be assumed to be 50 under entry 20 of part II of the Schedule to the Workmen's Compensation Act. We are not persuaded to accept that the same must be reckoned as 60% under entry 19 thereof. M.A.C.A. No.234 of 2003 6 9. The appellant shall consequently be entitled to a further amount of Rs.60,000/- (Rupees Sixty thousand only) as loss of earning capacity (Rs.1,250 X 12 X 8 X 50/100) in addition to the amounts already awarded by the Tribunal. Needless to mention that interest shall be payable on the entire amount as awarded by the Tribunal from the date of petition. 10. This appeal is accordingly allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-