IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 MACA.No. 2051 of 2005() ------------------------------------ OP(MV).2162/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/PETITIONER: --------------------------------------------------------------- JOBY, RESIDING AT ARAKKAPARAMBIL HOUSE, KIZHAKKUMPATTUKARA, THRISSUR DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADV. SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS RESPONDENT(S): RESPONDENTS: --------------------------------------------------- 1. A.A. SAHADEVAN, RESIDING AT ALAKKAL HOUSE, VI/108, PATTIKKAD, THRISSUR. 2. TENSINGH, S/O. JOSEPH, RESIDING AT MURIKKASSERY ROAD, PORUNNOLIL HOUSE, KEERITHODE, KANJIKUZHI, IDUKKI DISTRICT. 3. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, SREEKUMAR BUILDING, CHALAKUDY, THRISSUR DISTRICT. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R.BASANT & N.K.BALAKRISHNAN, JJ. ----------------------------------------- M.A.C.A No. 2051 OF 2005 ---------------------------------------- Dated this the 7th day of July, 2011 JUDGMENT BASANT,J. Claimant is the appellant. He suffered injuries on a road traffic accident on 25.6.2000. He limited his claim for compensation to Rs.2,00,000/-. The Tribunal by the impugned award directed payment of an amount of Rs.1,58,240/-. The details of which are shown below:- 1. Loss of earnings : Rs.12,000/-(2000x6) 2. Medical and miscellaneous expenses : Rs.94,000/- (bills for Rs.90,369/- produced) 3. Pain and suffering : Rs.12,000/- 4. Compensation for reduction in earning capacity : Rs.30,240/- (2000x12x18x7/100) 5. Loss of amenities : Rs.10,000/- ------------------ Total Rs.1,58,240/- ============ 2. The claimant claims to be aggrieved by the quantum of compensation awarded. Called upon to explain, the learned counsel for the appellant assails the impugned order on the following grounds: 3. First of all, it is contended that against the salary certificate produced which shows that his monthly income was Rs.4,000/-, the M.A.C.A No. 2051 OF 2005 2 Tribunal chose to accept only Rs.2,000/-. The learned counsel points out that even in the FIR, it is made very clear that the appellant is an employee of Kalyan Jewellers who had issued Ext.A10 leave and salary certificate. For obscure reasons the person who issued Ext.A10 was not examined. It will not be in apposite in this context to note that the assertion of the appellant was that he was getting a monthly income of Rs.6,000/-. Salary certificate shows only Rs.4,000/-. The appellant explains the same by the theory that he gets Rs.2,000/- in addition to his salary as commission. We cannot find fault with the Tribunal for not swallowing Ext.A10. But in any case considering the age of the appellant and the fact that even in the FIR, he is described as an employee of Kalyan Jewellers, we are of the opinion that a presumption of prudence can be drawn that his monthly income could not have been below Rs.2,500/-. Entry 6 of Schedule 2 of the Motor Vehicles Act which stipulates that even a non earning person in 1994 can be assumed to earn an income of Rs.1,250/- per mensem for the computation of compensation, deserves reference now. 4. The learned counsel assails the conclusion of the courts below that only 7% is the reduction earning capacity as against Ext.A12 disability certificate issued by a doctor. We do not want to dub Ext.A12 as unreliable. But in any case we are in agreement with the Tribunal that Ext.A12 cannot be accepted as such as it does not even show M.A.C.A No. 2051 OF 2005 3 whether the disability is permanent or temporary. It does not also show the scale on which the assessment is made. We have gone through Ext.A12 disability certificate. We are satisfied the Tribunal cannot be faulted for coming to the conclusion that 7% alone can be reckoned as reduction in earning capacity. 5. Appellant was inpatient in the hospital for 52 days in five spells. The learned counsel for the appellant contends that in addition to the amount of Rs.94,000/- awarded as medical and miscellaneous expenses, a further amount must specifically have been awarded as the bystanders expenses. 52 days the appellant is in hospital we agree that at the rate of Rs.100/- per day an amount of Rs.5,200/- can be awarded separately under the head of bystanders expenses. 6. Under the head of pain and suffering only an amount of Rs.12,000/- has been awarded and the learned counsel for the appellant contends that the amount awarded is unrealistic. 52 days hospitalisation in five spells; treatment during the interregnum as an out patient, fracture of both bones of the right leg, bone loss. Bone grafting done with the bone taken from the right iliac crest. All these together must have persuaded the court below to award a higher amount under the head of pain and suffering, contends counsel. We agree. We are satisfied a further amount of Rs.5,000/- can be awarded as compensation in addition to the amount of Rs.12,000/-. M.A.C.A No. 2051 OF 2005 4 7. We are not persuaded to agree that the amounts awarded under any other head deserves modification by invoking our appellate jurisdiction. 8. It follows from the above discussions that the appellant is entitled to the following further amount as compensation in addition to the amount already awarded : 1. Loss of earnings : Rs.3,000/- ( 2500x6 minus12000) 2. Bystanders Expenses : Rs.5,200/-(52x100) 3. Pain and suffering : Rs. 5,000/-(17000 minus 12000) 4. Reduction earning capacity : Rs. 7,560/- (Rs.2,500x12x18x7/100-Rs30240) ------------- Total Rs. 20,760/- ========= 9. The counsel argues that the award of interest under 6% is inadequate. We agree that interest can be awarded at 7.5% on the entire amount of compensation. 10. In the result, a. This appeal is allowed in part. b. In addition to the amounts already awarded by the Tribunal the appellant is found entitled to a further amount of Rs.20,760/- (Rupees twenty thousand seven hundred and sixty only) from the respondents. c. The entire amount of compensation shall carry interest M.A.C.A No. 2051 OF 2005 5 at the rate of 7.5 % per annum. The appellant is entitled for proportionate costs also throughout. d. All other directions of the Tribunal are upheld. e. Needless to say the amounts if any already paid shall be given due credit. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns