IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 MACA.No. 328 of 2005() ---------------------- APPELLANT/PETITIONER: -------------------------- ONATHI, W/O.APPU, PAMBLAPANIYA COLONY, PAMPLA, KARADIPPARA POST, AMBALAVAYAL, WAYANAD DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/RESPONDENTS: ---------------------------------- 1. KUMARAN, S/O.SREEDHARAN MUNDAKKAL HOUSE, ARIVAYAL POST, PAZHUVATHOOR S.BATHERY TALUK, (DRIVER OF KL 12/A 8775 JEEP). 2. P.A.GOPALAKRISHNAN, SREEBHUTHANATH HOUSE, KALAGAPPARA, SULTHAN BATHERY, WAYANAD DIST. (R.C.OWNER OF KL 12/A 8775 JEEP). 3. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., KALPANA SHOPPING COMPLEX, MAIN ROAD, KALPATTA, WAYANAD DIST. (INSURER OF KL 12/A 8775 JEEP). R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.328 of 2005 ---------------------------------------- Dated this the 18th 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 claimed compensation for personal injuries suffered by her in an accident which occurred on 05/11/2001. She, a tribal woman, aged 30 years, claimed to be a coolie earning an income of Rs.3,000/- per mensum. She claimed a total amount of Rs.2.5 lakhs as compensation. She had fractures of the mandible and fracture of the femur bilateral. She was an in-patient for forty seven days at the Calicut Medical College Hospital. She had to be involuntarily unemployed for a period of six months. She had allegedly suffered physical disability to the tune of 18% which was stated to result in occupational disability of 50%. 2. Before the tribunal, claimant was examined as PW1. Exts.A1 to A9 were marked. The tribunal, on an anxious consideration of all the relevant circumstances, proceeded to pass the impugned award directing payment of an amount of Rs.39,600/- along with interest @ 9% per annum as per the details given below. M.A.C.A.No.328/05 2 Transport to hospital Rs.3,000/- Extra nourishment Rs.2,000/- Damage to clothing Rs.250/- Treatment expenses Rs.2,500/- Bystanders expenses Rs.2,350/- (Rs.50/- x 47) Pain and suffering Rs.10,000/- Disability Rs.15,000/- Loss of earnings Rs.4,500/- (Rs.750/- x 6) Total Rs.39,600/- 3. 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 submits that the amount awarded under the head of transportation, extra nourishment, treatment and bystanders expenses are all unrealistic and do not reasonably take into account the probable expenses which the appellant must have incurred for getting herself treated at the Calicut Medical College Hospital far away from her residence. She was an in-patient for 47 days and reasonable inferences of prudence have not been drawn by the tribunal in fixing the amount under the above heads, contends the learned counsel for the appellant. We find merit in that contention. M.A.C.A.No.328/05 3 4. The learned counsel for the appellant then submits that bilateral fracture of the femur and fracture of mandible was suffered. The appellant was an in-patient for 47 days. She had to continue treatment after discharge also. At the time of discharge, a further surgery was advised; but she could not undertake the same. The amount of compensation awarded under the head pain and suffering is in these circumstances painfully low, contends the counsel. The learned counsel for the appellant then contends that the tribunal had gone against reasonableness and even the specific stipulations of the 2nd schedule in assuming that the appellant must have been drawing only an amount of Rs.750/- per mensum as wages. Even for a non-earning person, from 1994, 2nd schedule permits a presumption of prudence that such person must be earning an income of Rs.1,250/- per mensum . There is no justification for deviating from that norm, contends the counsel. Lastly and finally, the learned counsel for the appellant contends that no amount of compensation has been awarded under the head loss/reduction in earning capacity. The tribunal was satisfied that the appellant has suffered physical disability. She was treated in the Medical College Hospital and the doctor in the Medical College hospital issued Ext.A9 disability certificate showing that she has suffered physical disability to the tune of 18% consequent to the M.A.C.A.No.328/05 4 bilateral fracture of the femur and fracture of the mandible. The doctor has proceeded to make a further observation that the functional disability would be 50%. The tribunal evidently was satisfied that physical disability was suffered. But, quite surprisingly, no amount has been awarded under the head of loss of earning capacity adopting the multiplier multiplicand method. We agree with the learned counsel for the appellant that the tribunal is not justified in not awarding any amount under the head of loss of earning capacity. 5. Having considered all the relevant circumstances, we are persuaded to agree that the appellant is entitled for the following further amounts in addition to the amounts already awarded by the tribunal. 1. Transport to Hospital Rs.3,000/- (Rs.5,000/- minus Rs.2,000/-) 2. Extra nourishment Rs.2,000/- (Rs.4,000/- minus Rs.2,000/-) 3. Treatment expenses Rs.2,200/- (Rs.4,700/- minus Rs.2,500/-) 4. Bystanders expenses Rs.2,350/- (47 x Rs.100/- minus Rs.2,350/-) 5. Pain and suffering Rs.5,000/- (Rs.15,000/- minus Rs.10,000/-) M.A.C.A.No.328/05 5 6. Loss of amenities Rs.5,000/- (Rs.20,000/- minus Rs.15,000/-) (Rs.15,000/- already awarded as compensation under the head of disability) 7. Loss of earnings Rs.3,000/- (Rs.1,250/- x 6 minus Rs.4,500/-) 7. Reduction in earning capacity Rs.45,900/- (Rs.1,250/- x 12 x 17 x 18/100) Total Rs.68,450/- 6. The entire amount of compensation shall carry interest @ 7.5% from the date of the petition to the date of payment. 7. This appeal is accordingly allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.328/05 6 M.A.C.A.No.328/05 7 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009