IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 MACA.No. 2046 of 2006() ----------------------- OPMV.2833/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/PETITIONER: --------------------------- SHINE THOMAS, S/O.THOMAS, RESIDING AT THARAKAN HOUSE, MUTHUVATTOOR, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS SRI.SUNIL J.CHAKKALACKAL RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. G.UNNIKRISHNAN, S/O.GOPALAKRISHNA PILLAI RESIDING AT "KRISHNA BHAVAN", PONGANPARA, PUTHUR VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST. 3. THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, P.B.NO.434, ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAD, THIRUVANANTHAPURAM-14. R1 BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC R3 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ----------------------------------------------- M.A.C.A No. 2046 OF 2006 ----------------------------------------------- Dated this the 11th day of March, 2009 JUDGMENT BASANT, J Claimant before the Tribunal is the appellant before us. He had claimed compensation for personal injuries suffered in a motor accident which occurred on 08.07.01. He claimed an amount of Rs.2.5 lakhs as compensation. He had suffered fracture of the left femur. At the time of the accident he was a computer student aged 19 years. He was an in-patient for a period of 13 days. He had allegedly undergone a surgery. He was directed to use crutches for a period of six months from the date of the accident, it is submitted. There was resultant physical disability of 10%, it was further contended. Before the tribunal no oral evidence was adduced. Exts.A1 to A12 were marked. Learned Tribunal on an anxious consideration of all the relevant inputs came to the conclusion that the appellant is entitled for an amount of Rs.64,700/- as per details shown below along with interest at the rate of 7% per annum. MACA:2046/06 -:2:- 1. Transport to hospital :Rs. 1,000/- 2. Extra nourishment :Rs. 1,000/- 3. Medical expenses :Rs.30,200/- (against actual bills produced) 4. Bystander’s expenses :Rs. 2,000/- 5. Damage to clothing :Rs. 500/- 6. Pain and suffering :Rs.10,000/- 7. Loss of earning capacity consequent to physical disability :Rs.12,000/- (1,250x12x16x5/100) 8. Loss of amenities :Rs. 8,000/- ---------------- Total :Rs.64,700/- ========= 2. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of challenge which the appellant wants to mount against the impugned award, learned counsel for the appellant first of all contends that the accident and the consequent temporary disability had retarded the educational progress of the appellant, who was a 19 years old computer student at the relevant time. For the loss suffered by retardation of educational progress, no amount has been awarded as compensation. This is unjust. Reasonable amount deserves to be awarded as compensation under this head, contends counsel. We are inclined to agree with the learned counsel. We accept that there must have been trauma and consequent retardation of MACA:2046/06 -:3:- educational career for a period of four months at least, we are satisfied that an amount of Rs.8,000/- can be awarded as compensation under that head. 3. Counsel contends that the Tribunal erred in awarding only an amount of Rs.30,200/- as expenses for treatment. The Tribunal must have noted that medical expenses cannot be decided on the basis of actual bills produced alone. Even though Physiotherapy was advised and appellant had undergone Physiotherapy, no specific bills could be produced to show the expenses on that account. At any rate, reasonable amount should be awarded in addition to the amount awarded against the actual bills produced by him for such miscellaneous expenses incurred. We find force in that contention. We are satisfied in the facts and circumstances of this case that a further amount of Rs.2,500/- as miscellaneous expenses in addition to the amounts already awarded can be granted under the head medical expenses. 4. Counsel contends that the Tribunal has erred grossly in reckoning the multiplicand at Rs.1,250/-. Admittedly, physical disability has been suffered. The nature of the physical disability suffered is evident from the disability certificate, Ext.A9, produced MACA:2046/06 -:4:- by the appellant. The precise nature of the disability is described in the certificate. On examination, the disability is enumerated as follows: “ 1. He walks with a limp to (L) side. 2. United fracture Femur. 3. There is stiffness of (L) hip joint. Both rotations are painfully restricted. 4. Terminal movements of (L) knee is painfully restricted. 5. He will require major surgery for removal of implants.” 5. The doctor thereafter opined that permanent physical disability is assessed at 10%. The Tribunal reduced the same arbitrarily by 5% and reckoned the permanent reduction in earning capacity at 5% only. While computing the loss of earning capacity, by applying the multiplier-multiplicand method, the Tribunal ought to have realistically taken note of the probable future income of the appellant. Adoption of Rs.1,250/- as multiplicand is unrealistic. The accident occurred in 2001. From 1994 onwards, the law by the Second Schedule to the MV Act permits the drawal of presumption of prudence and that even a non earning person can be assumed to earn an income of Rs.1,250/- per mensem. Future prospects were not at all taken into account by the Tribunal, it is contended. We find merit in this MACA:2046/06 -:5:- contention. We are satisfied that the ends of justice would be advanced by accepting Rs.2,500/- as the multiplicand. In the facts and circumstances of the instant case where the appellant had not commenced earning. He, a 19 year old computer student, can certainly be assumed to start earning within a short time and Rs.2,500/- can in the circumstances be reckoned as the multiplicand. 6. 10% is shown as the disability. We have extracted the nature of the disability. It cannot invariably be assumed in every case that physical disability may cause an identical reduction in earning capacity. Considering the nature of the education which the appellant is undergoing – as a computer professional, the physical disability suffered by him can safely be assumed to result in loss of earning capacity to a minimum extent of 7.5%. Tribunal has accepted only 5% as the percentage reduction in earning capacity. With such modification of the multiplicand and extent of reduction in earning capacity, the appellant will be entitled for a further amount of Rs.24,000/- (2,500 x 12 x 16 x 7.5/100 minus 12,000) as compensation for loss of earning consequent to the disability. MACA:2046/06 -:6:- 7. Counsel contends that for loss of amenities also only an amount of Rs.8,000/- has been awarded. Physical disability suffered as per the disability certificate is 10%. Considering the age of the appellant, taking into account the longevity of an average Indian citizen, the appellant will have to live with the disability for about five decades, we are satisfied that award of an amount of Rs.15,000/-(Rs.7,000/- more) under the head of loss of amenities shall serve the ends of justice satisfactorily. The above discussion lead us to the conclusion that the appellant is entitled for the following further amounts in addition to the amounts already awarded by the Tribunal. 1. Compensation for loss of study/educational progress :Rs. 8,000/- (no amount awarded by the Tribunal) 2. Miscellaneous expenses in addition to the medical expenses already awarded :Rs. 2,500/- 3. Compensation for loss of earning capacity :Rs.24,000/- (2,500 x 12 x 16 x 7.5/100 minus 12,000) 4. Loss of amenities (15,000 minus 6,000) :Rs. 7,000/- ---------------- Total :Rs.41,500/- ========== 8. Needless to say, the entire amount of compensation shall bear interest from the date of the petition at the rates awarded by MACA:2046/06 -:7:- the Tribunal. 9. This appeal is accordingly allowed in part to the above extent. R. BASANT, JUDGE C.T. RAVIKUMAR, JUDGE ttb MACA:2046/06 -:8:- MACA:2046/06 -:9:-