IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 MACA.No. 594 of 2007() ---------------------- OPMV.1582/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): -------------- SALI,D/O.SAMUEL,RESIDING AT THANNICKAL HOUSE,DIVISION NO.1,CHEENTHALAR ESTATE, CHEENTHALAR,PEERMEDU,IDUKKI DISTRICT. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENT(S): --------------- 1. ALPHONSA PAULACHAN,CHIRACKAL HOUSE, MATTOOR,KALADY. 2. M.A.PAULY,S/O.PAULO AUGUSTHY, MENACHERY HOUSE,MATTOOR,KALAY. 3. THE BRANCH MANAGER,THE NATIONAL INSURANCE CO.LTD,THRIPUNITHURA. ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * M.A.C.A.No.594 of 2007 ---------------------------------------- Dated this the 26th day of March 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. She suffered personal injuries in an accident which occurred on 05/02/2001. She claimed to be a nurse earning a monthly income of Rs.3,000/-. She was aged 26 years. A total amount of Rs.2.5 lakhs was claimed as compensation. She was unmarried at the time of the accident. She has suffered serious injuries including multiple fractures. Medial condylar fracture of the right tibia, medial malleolus fracture of the left ankle, Jone's fracture of the left foot, fracture clavicle right and fracture scapula right are the injuries suffered. She was an in-patient for a total period of 44 days in three spells. She had allegedly suffered permanent physical disability which was assessed by PW1 doctor who issued Ext.A13 at 22% and later medical board which issued Ext.A14 at 25%. The report of the medical board shows that there was stiffness and deformity of the right knee with 2 cms shortening of the right lower limb. There was stiffness in the left ankle and deformity of the left leg. The tribunal, on an anxious consideration of all the relevant inputs came to the M.A.C.A.No.594/07 2 conclusion that the appellant is entitled for an amount of Rs.1,28,165/- as per the details given in paragraph 9 which we extract below: Loss of Income Rs.10,800/- Transportation charges Rs.2,000/- Extra nourishment Rs.2,000/- pain and suffering Rs.20,000/- Loss of amenities Rs.10,000/- Treatment expenses Rs.40,485/- Attendance charges Rs.4,000/- Disability Rs.38,800/- (Rs.1,800/- x 12 x 18 x 10/100) Total Rs.1,28,165/- The said amount was directed to be paid along with interest @ 7% per annum. 2. The appellant claims to be aggrieved by the impugned order. What is the grievance? Called upon to explain the precise nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant first of all contends that the monthly income of the appellant was reckoned by the tribunal only at Rs.1,800/-. According to the appellant, she was a nurse by qualification. No documents were produced in M.A.C.A.No.594/07 3 support of that assertion. The impugned award shows that a document had been produced before the court below which was not marked and which shows that she was a nurse by profession. The averment in the F.I.R indicated contra. The learned counsel for the appellant submits that even assuming that there is no better evidence at all, the tribunal should not have hesitated to draw reasonable inferences of prudence on the materials available. In this context, the learned counsel for the appellant points out that as early as in 1994 under the 2nd schedule to the M.V.Act, the tribunals are enabled to draw a presumption of prudence that even a non-earning person can be assumed to earn Rs.1,250/- per mensum . We find merit in the challenge raised. Even in the absence of better evidence, we are satisfied that the tribunal could safely have reckoned the monthly income at Rs.2,250/-. Consequently the appellant will be entitled for higher compensation for loss of income and loss of earning capacity. 3. The learned counsel for the appellant then contends that though Exts.A13 and A14 show that disability suffered was in the range of 22 to 25%, the tribunal had arbitrarily reckoned the same as 10% only. This is totally unjustified, contends the counsel. The nature of disability is evident from Ext.A14. There is shortening of 2 cms of the right lower limb. The appellant is now a nurse and her M.A.C.A.No.594/07 4 efficiency in performance of work is seriously impaired by the permanent disability suffered by her. In any view of the matter, acceptance of 10% only as the reduction in earning capacity is unjustified, contends the counsel. We find merit in the contention. Physical disability can safely be assumed to be in the range of 20% to 25%. Such physical disability, considering the nature of disability as also the nature of employment of the appellant now can safely be assumed to result in a reduction in earning capacity of 15%. Accordingly, higher amount of compensation would be payable under the head loss of earning capacity. The learned counsel for the appellant finally contends that the appellant, a young unmarried woman aged 26 years, had suffered physical disability to the tune of 22 to 25%. She will have to endure this disability for a period of about 4 ½ decades now, going by the longevity of an average Indian. Her marriage prospects are affected. The disability suffered is serious. The shortening of the leg makes it impossible to walk without a limb. In these circumstances, award of only an amount of Rs.10,000/- as compensation for loss of amenities is not sufficient or reasonable, contends the counsel. We find merit in that contention. 4. On the basis of the above discussion, we hold that the appellant is entitled to the following further amounts as M.A.C.A.No.594/07 5 compensation in addition to the amounts already awarded by the tribunal. 1. Loss of income Rs.2,700 more (Rs.2,250/- x 6 minus Rs.10,800/- 2. Loss of amenities Rs.10,000/- more (Rs.20,000/- minus Rs.10,000/-) 3. Compensation for reduction in earning capacity (called by the Rs.34,020/- more tribunal as compensation for disability) [(Rs.2,250/- x 12 x 18 x 15/100) minus Rs.38,800/-] Total Rs.46,720/- 5. Needless to say, the entire amount of compensation shall carry interest from the date of the petition at the rate directed by the tribunal. 6. This appeal is accordingly allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.594/07 6 M.A.C.A.No.594/07 7 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009