IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 MACA.No. 2457 of 2009 ----------------------- OPMV.1732/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/ PETITIONER ------------------------ SASI, CHANIVELIYIL HOUSE, CHARAMANGALAMKARA, MUHAMMA,CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.VINOD KUMAR.C SRI.K.K.DHEERENDRAKRISHNAN RESPONDENTS: RESPONDENTS -------------------------- 1. PRASANTH L.O., KALLUMADAPPRAMAPU HOUSE, KALLARA SOUTH,KOTTAYAM DISTRICT. 2. OUSEPH ULAHANNAN, PUTHANADATHU MADATHIL, KALLARA,KOTTAYAM DISTRICT. 3. THE NEW INDIA ASSURANCE CO.LTD., REP.BY ITS BRANCH MANAGER, ETTUMANOOR,KOTTAYAM DISTRICT. ADV. SRI.PHILIP T.VARGHESE FOR R2 SRI.THOMAS T.VARGHESE FOR R2 SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 2457 OF 2009 ============================ DATED THIS THE 21ST DAY OFJANUARY 2010 JUDGMENT Basant,J. The injured/claimant is the appellant. He had suffered in juries in a motor accident which took place on 6-3-2005. He belong to the age group of 45-50 on the date of the accident, i.e. 6-3-2005. He is a carpenter by profession. He claimed that his monthly income was Rs.6000/-. He had suffered compound fracture of both bones of right leg. Amputation of the second toe of the right leg was done. He was an inpatient for 58 days. He is alleged to have physical disability to the tune of 30%. 2. The Tribunal on an anxious consideration of all relevant inputs proceeded to award a total amount of Rs.2,39,728/- along with interest at the rate of 7.5% per annum to the appellant/claimant as per the details given below: 2 1)Loss of earning (claimed till date of filing of the Petition from 6/3/05 to 26/10/05.He was found availed treatment continuously for more than 7 months. He was found totally incapacitated from doing work for that period. Therefore entitled to realise 7 months loss of earning at the rate of Rs.3000/- per month : Rs.21,000.00 2)Medical expenses(bills accepted only for Rs.35322/-) : Rs.35,328. 00 3)Transport to hospital (bills rejected however allowed Rs.2500/- :Rs. 2,500.00 4) Damage to clothing :Rs. 500.00 5) Extra nourishment(demanded Rs.1000/- allowed) : Rs. 1,000.00 6)Bystander expenses(He was admitted in the hospital for about 58 days hence allowed : Rs. 6,000.00 7. future medical expenses(wound not healed even at present hence allowed) : Rs. 3,000.00 8. Pain and suffering :Rs. 20,000.00 9. Compensation for permanent disability (30000 x 12x13x30/100)multiplier is taken as 13 considering the income and the age of the petitioner as 45) : Rs.1,40,400.00 10. Compensation for loss of amenities and inconvenience if any :Rs. 10,000.00 Total :Rs.2,39,728.00 3 3. We have heard both counsel. The learned counsel for the appellant contends that the quantum of compensation awarded is painfully low and inadequate. Called upon to explain the nature of the challenge that the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on various grounds. 4. First of all it is contended that the Tribunal erred grossly in reckoning the monthly income of the appellant only as Rs.3,000/-. He was a carpenter by profession. The accident occurred in 2005. He belongs to the age group of 45-50. Such an experienced carpenter would have been able to earn at least an income of Rs.5000/-, contends the learned counsel for the appellant. The learned counsel argues that in any view of the matter, the amount reckoned by the Tribunal is inadequate and does warrant upward revision. 5. We have taken into account all the relevant circumstances. It is not disputed that the appellant is a carpenter which is a skilled job. Taking all the relevant circumstances into account, we are easily persuaded to agree 4 that in 2005 an experienced carpenter in Kerala must have been earning at least an income of Rs.4,000/- per mensem. Even in the absence of better evidence, we are satisfied that the said presumption of prudence can be drawn. It will be idle to expect a carpenter like the appellant to produce documentary evidence to prove his precise income. Computation of compensation is not a science of exactitude. Reasonable assumptions and presumptions will have to be resorted to. So reckoned, we come to the conclusion that Rs.4,000/- can safely be accepted as the quantum of monthly income, which the appellant must have been earning at the relevant time. 6. The learned counsel for the appellant next contends that the Tribunal erred in reckoning only 30% as reduction in earning capacity. Certificate relied on by the appellant, Ext.A28 only shows that the appellant had suffered physical disability to the tune of 30%. We are in ready agreement that the extent of physical disability cannot in all circumstances invariably be held to be the reduction in earning capacity also. The impact, which physical disability, has on the earning capacity of an individual may depend upon several factors - primarily the nature of employment. In the absence of better evidence, we are 5 satisfied, in the circumstances of the case, that the Tribunal was absolutely justified in accepting 30% as the probable reduction in earning capacity which is the physical disability assessed by the Doctor . The Doctor in his statement stated that the appellant will have to change his profession. We are not persuaded to agree that it can be assumed that total reduction in earning capacity has resulted. Every person suffering disabilities is expected by law to behave/conduct himself in such a manner as to mitigate the loss suffered by him. In these circumstances, it would be absolutely irrational to assume that with 70% physical ability the appellant would not be able to do any work. We are satisfied that the course adopted by the Tribunal - of reckoning 30% as the reduction in earning capacity is correct and does not warrant interference. 7. The learned counsel for the appellant next contends that fairly serious physical disablement has been suffered by the appellant and this disability is likely to have reflection on the quality of enjoyment of life that the appellant can afford to live hereafter. Only an amount of Rs.10,000/- has been awarded as compensation for loss of amenities and inconvenience. This is unrealistic and totally inadequate, contends the learned counsel. 6 We are in ready agreement with the learned counsel. Considering the extent and nature of the disability, we agree that the disability will have the impact/reflection on the quality of enjoyment of life of the appellant who belongs to the age group of 45-50 years. At any rate the amount of Rs.10,000/- awarded as compensation under that head is inadequate. We are not satisfied that the compensation awarded under any other head warrants interference. 8. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount as compensation in addition to the amounts already awarded by the Tribunal. 1) Loss of earning: 7 x 4000=28,000/- minus 21,000/- = Rs. 7,000/- 2)Loss of amenities: Rs.25,000/- minus Rs.10,000 = Rs. 15,000/- 3) Reduction in earning capacity : (4,000 x 12 x 13 x 30/100)1,87,200/- minus 1,40,400 = Rs. 46,800/- ------------------------------- Total = Rs.68,800/- ============= 7 9. In the result a) this appeal is allowed in part. b)The appellant is held entitled to a further amount of Rs.68,800/-(Rupees sixty eight thousand eight hundred only) in addition to the amounts already awarded by the Tribunal. c)Needless to say, the entire amount of compensation shall carry interest from the date of the petition to the date of payment at the rate of 7.5% per annum as directed by the Tribunal. d)All other directions are upheld. The Tribunal shall issue revised direction regarding deposit/release of the compensation amount. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. 8