IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 MACA.No. 1045 of 2005(B) ------------------------ OPMV.2933/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANTS/PETITIONERS :- --------------------------------------------- 1. MURALI, S/O.VELAYUDHAN (DIED) 2. SHEELA, W/O.MURALI. BOTH ARE RESIDING AT VIAMPARAMBIL HOUSE, P.O.VALLACHIRA, CHERPU, THRISSUR DISTRICT, (IST APPELLANT IS PARALISED AND IS OF UNSOUND MIND IS THEREFORE REPRESENT BY NEXT FRIEND GUARDIAN, THE 2ND APPELLANT). ADDL. 3. NIMITHA, D/O.LATE MURALI. ” 4. NITHA (MINOR), D/O.LATE MURALI. ” 5. KUNJUMOL, MOTHER OF LATE MURALI. MINOR SUPPL.4TH APPELLANT IS REPRESENTED BY HER GUARDIAN MOTHER THE 2ND APPELLANT. ALL ARE RESIDING AT VIAMPARAMBIL HOUSE, P.O.VALLACHIRA, CHERPU, THRISSUR DISTRICT. ADDL.APPELLANTS 3 TO 5 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 7.6.2010 IN I.A.No.3189/2009. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP MACA.No. 1045 of 2005 RESPONDENT(S) :- -------------------------- 1. RAJESH, RESIDING AT MAMMASSERY KODIVELIL HOUSE, P.O.VETTUKAD, THRISSUR DISTRICT. 2. M.G.RAMACHANDRAN, S/O.GOVINDAN EMBRANDIRI, RESIDING AT MAJALAYIL ILLAM, VALLACHIRA P.O., THRISSUR DISTRICT. 3. THE UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, PARK HOUSE, ROUND NORTH, THRISSUR. ADV. SRI.P.RADHAKRISHNAN (1) FOR R1 & R2 SRI.MADHU RADHAKRISHNAN FOR R1 & R2 SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt R. BASANT & N.K.BALAKRISHNAN, JJ. ------------------------------------ M.A.C.A. No.1045 of 2005 ------------------------------------ Dated this the 8th day of July 2011 J U D G M E N T Basant, J. Appellant is the claimant. During the pendency of the appeal the appellant expired on 24.6.2009. His legal heirs have now come on record. The legal heirs are the wife, two minor children and mother of the deceased. The claim petition was filed by the injured/claimant through his wife as next friend and guardian. 2. The 3rd respondent insurer has been made liable to pay the compensation. The liability is not disputed. 3. Against the claim of `7,00,000/-, the Tribunal had awarded an amount of `5,56,000/- as per the details shown below :- Compensation for continuing permanent disability - Rs.3,45,600/- (2000 x 12 x 16 x 90/100) M.A.C.A. No.1045 of 2005 -: 2 :- Pain and suffering - Rs. 30,000/- Loss of amenities - Rs. 30,000/- Loss of earnings for 12 months - Rs. 24,000/- Transport to hospital - Rs. 2,000/- Extra nourishment - Rs. 1,000/- Medical & bystander - Rs.1,24,000/- (Rs.99,690/- for medical) ---------------------- Total - Rs.5,56,600/- 4. The appellants claim to be aggrieved by the impugned award. What are the grounds of challenge? The learned counsel for the appellants submits that the appellants want to assail the impugned award on the following grounds :- (i) The monthly income of the injured reckoned for the purpose of ascertaining compensation at `2,000/- is perversely low. (ii) The amount awarded under the head of pain and suffering and loss of amenities do not realistically take into consideration the loss caused to the victim. (iii) No amount has been awarded under the head of future treatment and expenses for a person to look M.A.C.A. No.1045 of 2005 -: 3 :- after the deceased. (iv) Interest awarded at the rate of 6% per annum is too low. 5. We feel that it is necessary to advert the basic and relevant details. The accident occurred on 31.8.2000. The victim was a person aged 34 years, it is claimed. The Tribunal had reckoned age at 38 years taking into consideration the documents placed before the court. Be that as it may, we do reckon the victim as a person aged 38 years. He was a coolie by profession. He was allegedly earning `4,000/- per mensum at the time of the accident. He had become unconscious at the time of the accident. He was comatose for a long period of time. He had suffered head injuries. There was frontal extradural hematoma and subarachnoid haemurrhage. There was fracture of maxilla (R), frontal bone, nasal bone and acromioclavicular dislocation (R). He had undergone treatment in different period from 31.8.2000 to 27.11.2000, 2.1.2001 and 5.1.2001 as inpatient. He was again re-admitted on 21.1.2001. Open reduction and S.S.Wiring in right AC M.A.C.A. No.1045 of 2005 -: 4 :- joint was done on 18.6.2003. He was examined by a medical board on 18.6.2002. The medical board found that tracheostomy scar was present. He had a scar over right AC joint with subluxation. He was found to be hemiplegic (right side). In upper limb, spastic contraction was present. He had motor dysphagia. He had incontinence of urine and faeces. He was not able to walk or stand even with support. He could recognise only a few close relatives. Permanent disability was computed at 90%. He could comprehend. His speech could be recognised only by close relatives. He can obey simple commands. Rage reaction was present. Total disability was assessed at 90%. Right hemiplegia grade and spastic contraction right upper limb accounted for 75% disability; motor dysphagia for 10%; incontinence and self care not possible, not ambulant for 5% of the disability. For AC joint subluxation granted 10% disability. It was thus, that the total disability was ascertained at 90% by medical board consisting of the Superintendent of the Medical College Hospital, Thrissur, a Senior Lecturer in Neurosurgery, an Asst. M.A.C.A. No.1045 of 2005 -: 5 :- Professor in Surgery and a Senior Lecturer in Orthopaedics. The victim expired on 24.6.2009. The learned counsel for the appellants contends that permanent disability was assessed only at 90% that disability of 90% must have been assumed to result in complete and total loss of earnings. Reduction in earning capacity is different and distinct from reduction in physical ability. Considering the nature of physical disability to which we have already adverted to we are certainly in agreement with the learned counsel for the appellant that the Tribunal should have reckoned the reduction in earning capacity resulting from the physical disability at 100%. It was a case indisputably of total and complete deprivation of earning capacity. 6. It is next contended that the amount of `2,000/- reckoned by the Tribunal as monthly income is not justified. Learned counsel submits that the victim/injured was a coolie and in these circumstances it is puerile to expect the claimant to produce documentary evidence to prove his monthly income. The Tribunal can not throw its hands up merely M.A.C.A. No.1045 of 2005 -: 6 :- because no documentary evidence is produced. What is the nature of the documentary evidence that such a person can produce to prove his income? We are unable to find any satisfactory answer. One such input is that a family of four people, the wife and two minor children were dependent on the earnings of the deceased. They were keeping their body and soul together with such income of the deceased/injured. A safe indication can be seen from the amended 2nd schedule of the M.V.Act which authorised the courts as early as in 1994 to draw the presumption of prudence that even a non earning person can be assumed to earn an income of `1,250/- per mensum. The totality of available materials can safely persuade us to come to a conclusion, and we do accept, that `2,250/- can be reckoned as the monthly earning of the injured/deceased. 7. There is definitely evidence to show that the deceased was continuing his treatment from the date of accident for a long period of time. The pain and suffering endured by the injured can be gathered by the details M.A.C.A. No.1045 of 2005 -: 7 :- available in the documents. He was comatose. He could not speak thereafter for some period of time. He become hemiplegic and he could not move. The pain and suffering endured in the course of treatment as also deprivation of amenities of life can safely be deciphered from the totality of the circumstances available. Under the composite head of pain and suffering and loss of amenities, `60,000/- (`30,000/- each) has been awarded by the Tribunal. We have already noted that the injured had endured such disability and suffered till 24.6.2009 the date on which ultimately he had departed from the world. It is very easy to come to a conclusion that life must have been suffering and trauma for the victim from the date of the accident till the date of his death, that is from 31.8.2000 to 24.6.2009. We are satisfied that under the composite head of pain and suffering and loss of amenities an amount of `1,00,000/- (`50,000/- each) can safely be awarded. 8. The learned counsel for the appellant next contends that the amount of `1,24,000/- awarded under the head of M.A.C.A. No.1045 of 2005 -: 8 :- medical and bystander expenses takes into account only the expenses on that score till the date of the order. But subsequently also a bystander was necessary to attend on him completely till his death. No amount appears to be awarded under that head. We find merit in the contention of the counsel for the appellants that for prospective future treatment and bystander expenses some amount must have been awarded. We reckon `25,000/- is absolutely reasonable on this head considering the fact that the victim had continued to live till 24.6.2009. 9. Interest has been awarded only 6% per annum. The learned counsel submits that the interest awarded is too low. We agree with the counsel for the appellants. We are satisfied that 7.5% can be directed as interest payable from the date of the petition to the date of payment on the entire amount of compensation. 10. The above discussions lead us to the conclusion that the appellants are entitled for an amount of `1,51,400/- (Rupees One Lakh Fifty One Thousand and Four Hundred M.A.C.A. No.1045 of 2005 -: 9 :- only) in addition to the amount already awarded by the Tribunal. 1. Loss of earning capacity - Rs.86,400/- (2,250 x 12 x 16 x 100/100 = 4,32,000 – 3,45,600) 2. Pain and suffering and loss of amenities - Rs.40,000/- (1,00,000 – 60,000) 3. Future medical expenses and bystander expenses from the date of the award till the date of death - Rs.25,000/- -------------------- Total - Rs.1,51,400/- 11. In as much as the total amount to which the claimants/appellants are entitled exceeds amount of `7,00,000/- claimed, it is not necessary to consider the submission that for loss of earnings also the amount of `2,250/- must be taken as the monthly earnings. 12. We do note that our findings would mean that the appellants would be entitled to the amounts claimed by them. The fact that a party has chosen to claim only an amount that is reasonable and just cannot deter a court from awarding an M.A.C.A. No.1045 of 2005 -: 10 :- amount which is found to be fair, reasonable and just. Therefore, we hold that the appellants are entitled to the entire amount claimed – `7,00,000/-. 13. In the result :- (A) This appeal is allowed. (B) The appellants are found entitled to `7,00,000/- (Rupees Seven Lakhs only) along with cost legally admissible and interest on the amount of `7,00,000/- from the date of the claim to the date of payment at the rate of 7.5% per annum. (C) All other directions of the Tribunal are upheld. R. BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt