IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 MACA.No. 1607 of 2011(C) ----------------------- OPMV.980/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT : PETITIONER ------------------------ M.K.ABU, S/O.KOYA, MALIAKKAL HOUSE, P.O.CHERUTHURUTHY, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT : RESPONDENTS -------------------------- 1. K.V.JAYARAM, S/O.MEENAKSHIKUTTY, KURUPPATHODY HOUSE, P.O.OTTAPALAM, PALAKKAD DISTRICT-679101. 2. BIJU, S/O.RAVI, THUMPARAMBIL HOUSE, P.O.MANAKKAD, NEW VIKAS AUDITORIUM, SHORNUR, PALAKKAD-678001. 3. NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, CALICUT-673001. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** M.A.C.A No.1607 of 2011 ***************************** Dated this the 28th day of October, 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 08.05.2003. The claimant is a loading and unloading worker. He asserted that he gets a daily income of Rs.250/-. He had suffered compound fracture of both bones of the left leg. He was treated as an inpatient for 12 days. His fractured leg was put on pop cast. The pop cast was removed ultimately on 16.09.2003. He allegedly continued treatment as an outpatient thereafter. He had allegedly suffered permanent physical disability. A doctor who examined him issued Ext.A7 disability certificate to confirm that he has suffered disability to the tune of 13%. In particular it is reported that he had suffered shortening of left leg by 2.5 c.m. There was malunion of tibia and fibula. Details are given in Ext.A7. 2. The Tribunal by the impugned award, against a total claim of Rs.3,36,000/-, awarded only an amount of Rs.63,200/- as compensation as per the details given in para.11, which we M.A.C.A No.1607 of 2011 2 extract below: Sl.No. Head of claim Amount awarded 1 Loss of earning (total) Rs. 7,500.00(2500X3) 2 Medical and miscellaneous expenses Rs.18,872.00 3 Bystander's expenses Rs. 2,000.00 4 Transportation expenses Rs. 1,000.00 5 Extra nourishment Rs. 1,500.00 6 Damages to clothing etc. Rs. 500.00 7 Pain and suffering Rs.15,000.00 8 Disability Loss of earning power Loss of amenities Loss of expectancy of life Rs.16,800.00 (2500X12X4/100X14) Total Rs.63,172.00 rounded off to Rs.63,200/- The insurance company was made entirely liable to satisfy the award. 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded. 4. Called upon to explain and be specific, the learned counsel for the appellant first of all contends that the Tribunal erred grossly in reckoning only Rs.2,500/- as the monthly income. There was unassailable evidence to show that he was a M.A.C.A No.1607 of 2011 3 loading and unloading worker. About the income which he receives, he had examined the Union Secretary as PW1 and he had proved Ext.A11 certificate. The Tribunal did not accept the same. The learned counsel for the appellant argues that even if Ext.A11 and the oral evidence of PW1 were discarded by the Tribunal, the Tribunal ought to have drawn reasonable inferences from proved circumstances. At any rate, the Tribunal should have taken note of the decisions of the Supreme Court in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. Mohammad Tabbar & Anr. [2008 ACJ 1488]. Those decisions are authority for the proposition that even in the absence of any better evidence, a non earning home maker as also an unskilled manual labourer can be assumed to earn an income of Rs.3,000/- per mensem. To these must be added appropriate provisions for future improvement in prospects of employment. The appellant was an experienced worker, aged above 45 years. These realities have not been taken into account by the Tribunal while fixing the monthly income at Rs.2,500/-, contends the learned counsel. We agree with the learned counsel. Even in the absence of crisp, cogent and authentic data, the Tribunal cannot throw its hands in M.A.C.A No.1607 of 2011 4 helplessness. Reasonable inferences will have to be drawn taking into account the totality of circumstances available. We are, in theses circumstances, satisfied that the monthly income of the appellant can safely be assumed to be Rs.3,000/- for the purpose of ascertaining loss of earnings and Rs.3,500/- for ascertainment of the loss of earnings. The learned counsel for the insurance company alertly points out that going by the Second Schedule to the Motor Vehicles Act, 13 and not 14 (as taken by the Tribunal) can be reckoned as the multiplier. We accept that contention. 5. It is then contended that the Tribunal was wrong in assuming that there was involuntary unemployment for a period of 3 months. In fact the materials indicate that the appellant was in plaster for a period of 4 months. We are satisfied that 6 months can be reckoned as the period of involuntary unemployment taking into account the nature of injuries as also the nature of employment of the appellant, where physical ability is of paramount importance. 6. It is then contended that the Tribunal erred in accepting only 4% as the reduction in earning capacity. The Tribunal ought to have noted that there is 2.5 c.m shortening of M.A.C.A No.1607 of 2011 5 left leg. There was also malunion of tibia and fibula. At any rate, there was no justification in assuming that the reduction in earning capacity would be below 13% as indicated in Ext.A7 disability certificate, contends the learned counsel. We are satisfied that the said contention of the learned counsel for the appellant can be accepted. In coming to this conclusion, we take note of the intrinsic details available in Ext.A7 as also the nature of employment of the appellant as a loading and unloading worker. 7. The learned counsel for the appellant finally contends that no compensation has been awarded under the head of loss of amenities. Physical disability suffered by the appellant is proved. Such physical disability has two fold reflections on the life of a person. It reduces the earning capacity. It also impairs and reduces the quality of enjoyment of life which the victim can aspire for the rest of his life. The appellant, a person, aged above 45 years, is certainly entitled to be compensated for the loss of amenities resulting from the physical disability suffered by him. 8. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.84,680/- as M.A.C.A No.1607 of 2011 6 compensation as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs.10,500.00 (3,000 X 6=18,000 minus Rs.7,500/-) ii) Reduction in earning capacity : Rs.54,180.00 (3500 X 12 X 13 X 13/100 = 70,980 minus 16,800) iii) Loss of amenities : Rs.20,000.00 (no amount awarded by the Tribunal) ------------------- Total : Rs.84,680.00 ======== 9. We are not persuaded to agree that the amount awarded under any other head deserves or warrants appellate interference. 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.84,680/- (Rupees Eighty four thousand six hundred and eighty 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.1607 of 2011 7 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) (K.SURENDRA MOHAN, JUDGE) rtr/