IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 MACA.No. 796 of 2004(G) ----------------------- O.P.M.V NO.1560/96 OF M.A.C.T, THALASSERY APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SABEER, S/O.ABDUL RAHIMAN, AGED 26 YEARS, PAREKKATTIL HOUSE, P.O.ULIYIL, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENTS -------------------------- 1. BASHEER, S/O.HASSAN, PARAYIL HOUSE, P.O.EDAPAZHASSI. 2. THE NATIONAL INSURANCE CO.LTD., THALASSERY. 3. K.V.ALEEMA, S/O.POCKER, PARAYIL HOUSE, P.O.URUVACHAL. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & P.R.RAMACHANDRA MENON, JJ. ------------------------------------ M.A.C.A. No.796 of 2004 ------------------------------------- Dated this the 10th day of February, 2009 JUDGMENT R.BASANT, J. The claimant before the Tribunal is the appellant before us. He claimed compensation of an amount of Rs.4 lakhs for personal injuries suffered by him in an accident. At the time of the accident, he was 18 years old. He claimed to be self employed. He had suffered multiple fractures and as many as 4 fractures - of the right and left femur, right tibia and of the left patella. He was an inpatient at the Kasturba Hospital, Manipal for about 66 days. He allegedly had suffered permanent physical disability as a result of the accident. He had pressed into service a disability certificate issued by a doctor which showed that 40% is the partial permanent disability of the left lower limb. That certificate further proceeded to show that over all permanent functioning disability is to be reckoned as 45% - ie. more than disability of the particular member limb. 2. The Tribunal considered all the relevant inputs and awarded a total amount of Rs.62,200/-. In the absence of better evidence about the precise income allegedly earned by the 18 M.A.C.A. No.796 of 2004 2 year old claimant, notional income was reckoned at Rs.15,000/- per annum. 3. Called upon to explain the nature of the specific challenge against the award, the learned counsel for the appellant submits that the Tribunal has erred grossly in not accepting the disability certificate. The Tribunal appears to have been convinced that there was physical disability. The dispute was only about the precise ascertainment of the extent and quantification of the disability. In respect of that the disability certificate issued by the doctor (Ext.A7) was not reckoned by the Tribunal as acceptable. At any rate finding that there was some disability, an amount of Rs.15,000/- alone was awarded as compensation for loss of amenities. 4. The learned counsel for the appellant contends that even assuming that there is no precise ascertainment of the percentage of physical disability, irrefutable facts reveal that there was 1.5 c.m shortening of the left leg not to speak about the other specific items of impairment of physical function referred to in Ext.A7 disability certificate. At least taking that into account, the Tribunal must have considered the reflection of M.A.C.A. No.796 of 2004 3 such disability on the earning capacity of the claimant as also his ability to enjoy life and the impairment of the amenities resulting therefrom. 5. It was certainly up to the claimant to have adduced specific and acceptable evidence about the extent of disability suffered by him. But even in the absence of authentic and specific input on the percentage of disability, we agree with the learned counsel for the appellant that definitely the appellant must have suffered disability. Specific data is available from Ext.A7 as also from the nature of injuries suffered that the appellant must have suffered shortening of 1.5 c.m of the left leg. 6. Even though sufficient data is not made available, we are persuaded to agree that the appellant is entitled for compensation for reduction in earning capacity and loss of amenities resulting from such physical disability. We are satisfied that the award of a global amount of Rs.25,000/- each under these heads shall serve the ends of justice eminently. 7. There is a contention raised by the learned counsel for the appellant that the exoneration of the insurance company M.A.C.A. No.796 of 2004 4 totally is unjustified. According to the appellant, he was accompanying the goods that were being carried in the vehicle. The Tribunal had pointedly adverted to this aspect - that there is nothing in evidence to indicate that there were any goods being carried in the vehicle. There is nothing to show that the appellant's goods were being carried in the vehicle. There is nothing to show that the appellant was accompanying the goods/furniture belonging to his uncle which were being transported in the vehicle. In any view of the matter there is absolutely nothing to indicate that the appellant was accompanying any goods in that vehicle. The contention that the appellant was accompanying the goods in the vehicle is thus found to be absolutely unsustainable. The Tribunal committed no error in not accepting that contention. The challenge on this aspect fails. The request of the learned counsel for the appellant that the insurance company may be directed to pay the amount and recover the amount later from the insured/owner cannot also, in these circumstances, be accepted. 8. We are not persuaded to interfere with the amounts awarded under the other heads which do appeal to us to be M.A.C.A. No.796 of 2004 5 absolutely fair and reasonable. An amount of Rs.15,000/- has already been awarded under the head loss of amenities. Deducting that, the appellant must now be entitled for a further amount of Rs.35,000/- in all. 9. In the result: a) This appeal is allowed in part; b) The appellant is entitled to a further amount of Rs.35,000/- over and above the total amount awarded by the Tribunal along with interest as already directed. (R.BASANT, JUDGE) (P.R.RAMACHANDRA MENON, JUDGE) rtr/-