IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 MACA.No. 1197 of 2006() ----------------------- OPMV.1/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ----------------------------------- ABRAHAM P.J. @ KUTTYACHAN, S/O. JOSEPH, PANDANATHU (H), ERATTAYAR KARA, KALKOONTHAL VILLAGE. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT(S): RESPONDENTS --------------------------- 1. SHAJI SEBASTIAN, THARAKUNNEL (H), VELLAYAMKUDY P.O. 2. THE NEW INDIA INSURANCE CO. LTD., KOTTAYAM. ADV. SRI.KKM.SHERIF FOR R2 SRI.P.M.KUNJIMOIDEENKUTTY FOR R2 SRI.P.A.MOHAMMED ASHROF FOR R2 SRI.A.A.ZIYAD RAHMAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- M.A.C.A. No.1197 of 2006 ------------------------------------------------- Dated this the 4th day of November, 2011 JUDGMENT Basant, J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 21/2/2000. He was aged 33 years on the date of the accident. He claimed to be an agriculturist earning an income of `4,000/- per mensem. He had suffered fracture of right and left superior and inferior pubic ramus. There was undisplaced fracture of right acetabulam of femur. There was sub conjuctival haemorrhage. He underwent treatment as an inpatient for a period of 11 days. He continued treatment as outpatient. He had allegedly suffered permanent disability. The appellant produced the certificate issued by the Medical Board which assessed his disability at 8%. The stiffness of right hip joint following undisplaced fracture of right acetabulam is the disability noted. M.A.C.A. No.1197 of 2011 -: 2 :- The physical disability was assessed at 8%. 2. The Tribunal by the impugned award directed payment of a total amount of `42,310/- as compensation against the claim limited to `2,00,000/- as per the details given below. The insurance company was made entirely liable to satisfy the award. Sl. No. Head of clam Amount awarded 1 Loss of earnings (6 months) 1,000/- (15 days) 2 Transportation expenses 1,500/- 3 Extra nourishment 500/- 4 Damage to clothing 250/- 5 By-stander's expenses 1,100/- 6 Treatment expenses 11,636/- 7 Loss of amenities .. 8 Pain and suffering 10,000/- 9 Future treatment Nil 10 Loss of earning power Nil 11 Disability (Rs.2000/- x 12 x 17 x 4/100) 16320/- Total Rs.42,306/- rounded to Rs.42,310/-) 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded. 4. Called upon to explain and be specific, the learned counsel for the appellant, first of all, contends that the monthly income of the appellant reckoned by the Tribunal at `2,000/- is M.A.C.A. No.1197 of 2011 -: 3 :- painfully low. He was an agriculturist aged 33 years. Even in the absence of better evidence, reasonable inferences ought to have been drawn by the Tribunal, it is contended. The burden certainly on the shoulders of the claimant to place satisfactory data available before the Tribunal to prove the loss/earnings. No better evidence whatsoever is made available. But even in the absence of better evidence, the Tribunals cannot throw their hands up in helplessness. Reasonable inferences ought to be drawn. The presumption of prudence available under Clause (6) of the Second Schedule in respect of non-earning persons which stipulation has remained from 1994 can certainly be taken into account. We are satisfied that even in the absence of any better evidence the appellant's income can safely be taken at `2,500/- per mensem. 5. The appellant had suffered fractures described above. He was an inpatient for a period of 11 days. The Tribunal assumed that the appellant must have been involuntarily unemployed for a period of 15 days. This is unrealistic, contends counsel. Considering the nature of injuries, period of treatment and nature of unemployment of the appellant, we are satisfied that it is absolutely safe to assume that the appellant must have been involuntarily unemployed as a result of the accident and injury for a period of 4 months. M.A.C.A. No.1197 of 2011 -: 4 :- 6. The Medical Board had assessed the disability to be 8%. The Tribunal slashed it down to 4%. It is contended that considering the nature of employment of the appellant as an agriculturist, the physical disability must have identical reflections on his earning capacity also. We accept the submission of the learned counsel for the appellant. We find no reason not to accept and act upon the report of the Medical Board placed before the Tribunal which we have perused (Ext.A7). We accept that 8% must have been the reduction in earning capacity also. 7. For pain and suffering, an amount of `10,000/- has been awarded. But no compensation has been awarded separately under the head of loss of amenities. The physical disability suffered by a person leaves behind two fold reflections on his life. It reduces the earning capacity. It also reduces and impairs the quality of life which the victim can aspire to live thereafter. The appellant aged 33 years will have to endure the disability for the entire rest of his life. We are satisfied that an amount of `15,000/- deserves to be granted under the head of loss of amenities. The multiplier has been reckoned at 17 and for a person aged 33 years that is absolutely correct going by the Second Schedule to the Motor Vehicles Act when claim for compensation for permanent partial disability is taken into consideration. M.A.C.A. No.1197 of 2011 -: 5 :- 8. The above discussions lead us to the conclusion that the appellant is entitled to receive an amount of `53,480/- (Rupees fifty three thousand four hundred and eighty only) as compensation as shown below in addition to the amount already awarded by the Tribunal: 1. Loss of earnings (2500 x 4 (minus `1000) - `9,000/- 2. Reduction in earning capacity (2500 x 12 x 17 x 8/100 = `40800/- minus `16,320/-) - `24,480/- 3. Loss of amenities (no amount separately awarded by the Tribunal) - `20,000/- ------------- Total - `53,480/- ====== 9. We are not persuaded to interfere with the amount awarded under any other head. 10. The learned counsel for the appellant submits that interest has been awarded only at the rate of 6% per annum. We are satisfied that interest deserves to be awarded at the rate of 7.5% per annum from the date of the claim to the date of payment/ realisation. No cost is allowed by the Tribunal. The learned counsel argues and we agree that as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943) proportionate cost in the proceedings before the Tribunal for the entire amount of compensation hereby awarded is liable to be granted. M.A.C.A. No.1197 of 2011 -: 6 :- 11. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to a further amount of `53,480/- (Rupees fifty three thousand four hundred and eighty only) as compensation in addition to the amount already awarded by the Tribunal. (c) We direct that interest shall be paid on the entire amount of compensation at the rate of 7.5% per annum from the date of the claim to the date of payment. Interest shall not, however, be paid on the enhanced amount of compensation for the period of delay in filing the appeal - i.e., 477 days. (d) Proportionate costs for proceedings before the Tribunal for the entire amount of compensation shall be paid to the appellant as held in Jeena v. Satheesh Babu.K. (2011 (3) KLT 943). (e) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge