IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 MACA.No. 1651 of 2009(B) ----------------------- OPMV.785/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT : PETITIONER ------------------------ BIJU M ABRAHAM, S/O. M.P.ABRAHAM MELAKAYIL HOUSE, KAVIYOOR PO, THIRUVALLA. BY ADV. SRI.S.SUBHASH CHAND SMT.M.P.MARY RESPONDENTS : RESPONDENTS --------------- 1. AJU THOMAS, S/O.THOMAS ABRAHAM CHITTETTU HOUSE, PERUMTHURUTHY PO,THIRUVALLA. 2. ORIENTAL INSURANCE CO.LTD DIVISIONAL OFFICE, THIRUVALLA. SRI.GEORGE CHERIAN(THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1651 of 2009-B ***************************** Dated this the 19th day of September, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 29.12.2000. He had suffered fracture of the left tibia and fracture of the left patella. He was an inpatient for a total period of 43 days. He had undergone two surgeries. He claimed to be employed with a private employer. He claimed that he was getting a monthly income of Rs.5,000/-. He was aged 26 years at the time of the accident. Against a total claim which was limited to Rs.5 lakhs, the Tribunal awarded a total amount of Rs.1,36,775/- as per the details given in para.11 of the impugned award, which we extract below: Sl.No. Heads of award Amount awarded 1 Pain and sufferings Rs. 30,000.00 2 Loss of amenities of life, inconvenience and discomforts caused Rs. 15,000.00 3 Medical and treatment expenses Rs. 40,875.00 4 Loss of earning for 4 months Rs. 10,000.00 M.A.C.A No.1651 of 2009-B 2 Sl.No. Heads of award Amount awarded 5 Transportation expenses and damage to clothing Rs. 3,500.00 6 Bystander expenses and extra nourishment Rs. 5,000.00 7 6% disability caused Rs. 32,400.00 Total Rs.1,36,775.00 2. We have heard the learned counsel for the appellant/claimant and the learned counsel for the 2nd respondent insurance company. The insurance company has been made entirely liable under the impugned award to satisfy the award. The challenge is directed only against the quantum of compensation awarded by the Tribunal. 3. Called upon to explain and be specific, the learned counsel for the appellant submits first of all that the monthly income reckoned by the Tribunal at Rs.2,500/- is grossly inadequate. According to the appellant, he was earning an income of Rs.5,000/- per mensem. No evidence whatsoever has been adduced in support of this assertion. Even in the absence of any better evidence, we deem it absolutely safe to assume that the claimant, a young man aged above 26 years, must have been earning an income of Rs.3,000/- per mensem at the time of the accident. In coming to this conclusion, we take note of the M.A.C.A No.1651 of 2009-B 3 presumption of prudence available under clause 6 of the Second Schedule to the Motor Vehicles Act. We also take note of the decisions in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. Mohammad Tabbar & Anr. [2008 ACJ 1488], which permit the courts to draw an inference of prudence that even a non earning home maker or an unskilled manual worker can safely be assumed to earn an income of Rs.3,000/- per mensem. In the absence of any better evidence, we are unable to assume his monthly income at any higher amount. 4. No disability certificate was produced before the Tribunal. The Tribunal was satisfied that there was permanent disability. The Tribunal reckoned only 6% as the extent of disability. 5. Before us a disability assessment certificate issued by the Medical Board at the General Hospital, Pathanamthitta has been produced. We have received the same on file. We find it absolutely safe to accept that 12% disability must have been suffered by the appellant. Annexure-1 certificate issued by the Medical Board of the General Hospital, Pathanamthitta does appeal to us. The same is eminently reasonable and acceptable. M.A.C.A No.1651 of 2009-B 4 Fracture of the left tibia and fracture of the patella are confirmed. Movements of the left knee are restricted, it is certified. There is 1 c.m shortening of the left leg. The claimant is unable to squat or walk long distance, it is certified. The Board has opined that the permanent disability suffered by the claimant assessed on Mc Bride's scale is 12%. 6. We are satisfied that in the absence of any better evidence, it is absolutely reasonable to assume that 12% disability must have resulted in reduction in earning capacity also to identical extent. In the absence of any better and more satisfactory data, we are unable to enter any better finding in favour of the claimant/appellant in this regard. 7. Even though there is a contention that the amount awarded under the heads of pain and suffering and loss of amenities of life (total Rs.45,000/-) is inadequate, we are not persuaded to agree. We are of the opinion that the total amount of Rs.45,000/- awarded under the heads of pain and suffering and loss of amenities, inconvenience and discomfort is eminently reasonable. We are not persuaded to interfere with the amount awarded on any other heads. 8. The claimant was aged between 25 and 30 years at M.A.C.A No.1651 of 2009-B 5 the time of the accident and going by the Second Schedule to the M.V Act, 18 is to be reckoned as the multiplier. The same has been correctly reckoned by the Tribunal. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.47,360/- as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs.2,000.00 [3,000 X 4=12,000 minus Rs.10,000/-] ii) Reduction in earning capacity : Rs.45,360.00 (3000 X 12 X 18 X 12/100 =77,760 minus 32,400) ------------------- Total : Rs.47,360.00 ======== 10. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a further amount of Rs.47,360/- (Rupees Forty seven thousand three hundred and sixty only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of M.A.C.A No.1651 of 2009-B 6 compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/