IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 MACA.No. 232 of 2005() ---------------------- OPMV.680/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- VASUDEVAN, AGED 27 YEARS, S/O. RAMAKRISHNAN, MACHINGAL HOUSE, PALLIKURUPPU P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): --------------- 1. KANTHASWAMY, AGED 29 YEARS, S/O.THOTHA KOUNTER, DOOR NO.2/123, MANPARA P.O., PULIVALAM (VIA), THURAIYUR TALUK, TRICHY DISTRICT TAMIL NADU (DRIVER OF LORRY NO.TN 45X/5776). 2. P.M.SELVARAJ, AGE NOT KNOWN, FATHER'S NAME NOT KNOWN, PULIVALAM, THURAIYUR, TRICHY, TAMIL NADU (R.C.OWNER OF LORRY NO.TN.45X/5776). 3. THE NEW INDIA ASSURANCE COMPANY LTD., JUMAN CENTRE, PREMENADE ROAD, CONDONMENT, TRICHY, PIN 620 001 (POLICY NO.3172070457880 168/96260 VALID FROM 12/7/01 TO 11-7-2002, INSURER OF LORRY NO.TN.45X/5776) ADV. SMT.RAJI T.BHASKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & N.K. BALAKRISHNAN, JJ. ------------------------------------------------- M.A.C.A. No.232 of 2005-B ------------------------------------------------- Dated this the 12th day of July, 2011 JUDGMENT Basant,J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him on 15.03.2002 in a motor vehicle accident. Against a total claim of Rs.3.5 lakhs, the Tribunal awarded only an amount of Rs.1,27,600/- as per the details shown below: i) Pain and suffering : Rs. 20,000.00 ii) Medical expenses : Rs. 69,300.00 iii) Bystander's expenses: Rs. 3,800.00 iv) Loss of earning : Rs. 10,000.00(5 X 2000) v) Loss of earning capacity (2000 X 12 X 3/100 X 18) : Rs. 13,000.00 vi) Transport to hospital: Rs. 3,500.00 vii) Extra nourishment : Rs. 3,000.00 viii) Expense for future treatment : Rs. 5,000.00 --------------------- Total : Rs.1,27,600.00 ========= M.A.C.A. No.232 of 2005 -: 2 :- 2. We have heard the learned counsel for the appellant and the learned counsel for the 3rd respondent/insurance company. The learned counsel for the appellant contends that the quantum of compensation awarded is not fair, just or reasonable. The compensation awarded deserves to be enhanced, contends the learned counsel. 3. The accident occurred on 15.03.2002. The appellant was aged 27 years. He had suffered multiple fractures. The medical records suggest that he had suffered head injuries right frontal EDH with pneumocephalus, Fracture right humerus, right haemothorax with multiple fracture ribs. There was fracture scapula, there was fracture upper 1/3 of ulna. He was an inpatient from 15.03.2002 to 03.04.2002 and 02.05.2002 to 07.05.2002. General surgery and neuro surgery were undertaken. Surgical procedures had to be undergone. Bone grafting was done. He had to continue treatment as an outpatient till March, 2003. After treatment, he was examined by a doctor, who issued disability certificate to confirm that he had suffered permanent disability to the tune of 4% in the functioning of the right arm. M.A.C.A. No.232 of 2005 -: 3 :- 4. The learned counsel for the appellant, first of all, contends that considering the nature of injuries suffered and period and nature of treatment undergone, the compensation awarded under the head of pain and suffering is too meager. We find merit in the contention. We feel that an amount of Rs.30,000/- should safely have been fixed as compensation payable under the head of pain and suffering. 5. The appellant had to continue treatment as an inpatient for the period mentioned above and subsequently as an out patient till March, 2003. Medical expenses was allowed only to the extent of Rs.69,300/- against the actual medical bills produced while he was undergoing treatment as an inpatient. Realistically, it must have been noted that a claimant like the appellant would not have been able to keep all the medical bills for production before court. Reasonable inferences should have been drawn, it is contended. We find merit in that contention. We are satisfied that a total amount of Rs.75,000/- can safely be fixed as quantum of compensation payable under the head of Medical and Miscellaneous expenses. 6. The next ground of challenge is the amount awarded M.A.C.A. No.232 of 2005 -: 4 :- under the head of loss of earnings. For a period about one year the appellant had to undergo treatment. The Tribunal had reckoned loss of earnings only for a period of 5 months. Monthly earnings was reckoned at Rs.2,000/-. The appellant is claimed to be a Coolie - an able bodied unskilled worker. We are satisfied that considering the nature of his employment, the nature of injuries and the period of treatment, there must have been involuntary unemployment for a period of 8 months. We reckon the monthly earnings at Rs.3,000/-. 7. Under the head of loss of earning capacity, the Tribunal reckoned only 3% as the reduction in earning capacity. The medical certificate clearly indicates that he had 4% disability of the right arm. The Tribunal attempted to translate that into the whole body physical disability and reckoned the same as 3%. The learned counsel for the appellant contends that considering the nature of employment of the appellant as a manual physical worker, the 3% physical disability must certainly have been assumed to result in a greater percentage of reduction in earning capacity. Crisp and cogent evidence on that aspect is not tendered. We cannot definitely throw our hands up in M.A.C.A. No.232 of 2005 -: 5 :- helplessness merely because better and and more competent evidence has not been adduced. In any view of the matter, we are of the opinion that we will not commit any error if we reckon 5% as the extent of reduction in earning capacity on the basis of the materials available. While computing the quantum of compensation for reduction in earning capacity, the appellant's monthly income will have to be reckoned at Rs.3,000/- 8. The next ground of challenge is that no compensation has been awarded under the head of loss amenities. Physical disability suffered by a person will have two fold reflections in his life. It will reduce the earning capacity. It will also impair the quality of life which a person can aspire to enjoy. We take note of the fact that the appellant was aged about 27 years only at the time of the accident. The Tribunal evidently erred in not awarding any compensation under the head of loss of amenities. Even in the absence of better evidence, we are satisfied that an amount of Rs.25,000/- can be awarded under the head of loss of amenities. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.74,100/- as M.A.C.A. No.232 of 2005 -: 6 :- compensation in addition to the amounts already awarded by the Tribunal: 1. Pain and suffering - Rs.10,000/- (Rs.30,000/- minus Rs.20,000/-) 2. Medical and Miscellaneous expenses - Rs. 5,700/- (Rs.75,000/- minus Rs.69,300/-) 3. Loss of earnings - Rs.14,000/- (8 x 3000 minus Rs.10,000/-) 4. Loss of earning capacity - Rs.19,400/- (3000 x 12 x 5/100 x 18 minus Rs.13,000/-) 5. Loss of amenities - Rs.25,000/- ---------------- Total - Rs.74,100/- ======= 10. Interest has been awarded only at the rate of 6% per annum. We agree that interest must have been awarded at least at the rate of 7.5% per annum from the date of the petition to the date of payment/deposit. 11. In the result: (a) This appeal is allowed in part. (b) The appellant is held entitled to a further amount of Rs.74,100/- in addition to the amounts already awarded by the M.A.C.A. No.232 of 2005 -: 7 :- Tribunal. (c) Interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of petition to the date of payment/deposit. (d) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- N.K. BALAKRISHNAN (Judge) Nan/ //true copy// P.S. to Judge