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. 1609 of 2011() ----------------------- OPMV.669/2003 of ADDL.M.A.C.T, THRISSUR .................... APPELLANT : PETITIONER ------------------------ RASHEED, S/O.ABDUL RAHIMAN, 50 YEARS, S/O.LATE CHUNNAMEERAN, THOTTASSERY HOUSE, THANIPADAM, CHUVANNAMANNU, THRISSUR.(MENTALLY CRIPPLED),REP.BY HIS GUARDIAN, NEXT FRIEND AND FATHER ABDUL RAHIMAN, DO. DO. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS : RESPONDENTS -------------------------- 1. SHYJU ABRAHAM, S/O.ABRAHAM, VELLAMKOTT HOUSE, P.O.PEECHI, THRISSUR-68001. 2. SEBI @ SEB CHERIAN, S/O.CHERIAN, VELIKKAKATH HOUSE, CHENNAIPARA, MANNAMANGALAM, THRISSUR-680001. 3. NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE,KOLLANUR DEVASSY SMARAK BUILDING, ROUND EAST, THRISSUR-68001. ADV. SRI.M.A.GEORGE FOR R3 SRI.P.JACOB MATHEW 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.1609 of 2011-C ***************************** 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 07.07.2002. He had suffered multiple injuries including head injury. He was an inpatient for a period of 52 days. He continued treatment as an outpatient. He was a mason, aged 22 years at the time of the accident. He had suffered physical disability. There was neurological deficit. There was also impairment in vision as observed by the Ophthalmologist. Exts.A5 opthalmic report and A6 disability certificates reveal the nature of the disability suffered. PW1, who issued Ext.A6 disability certificate, was examined. According to him, the whole body resultant disability, taking all deficiencies into account, is 32%. The Tribunal by the impugned award against a total claim of Rs.10,13,250/- awarded an amount of Rs.2,24,700/- as compensation as per the details given below: M.A.C.A No.1609 of 2011-C 2 Sl. No. Head of claim Amount awarded 1 Pain and suffering Rs. 18,000.00 2 Loss of earning Rs. 7,500.00(2500X3) 3 Damages to clothing Rs. 500.00 4 Transportation expenses Rs. 1,500.00 5 Medical expenses Rs. 66,200.00 6 Bystander expenses Rs. 3,000.00 7 Extra nourishment Rs. 1,000.00 8 Permanent disability Rs.1,02,000.00(2500X12X20/100X17) 9 Loss of amenities Rs. 25,000.00 Total Rs.2,24,700/- The insurance company was made entirely liable under the impugned award. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only on the ground that the quantum of compensation awarded is not sufficient and adequate. 3. Called upon to explain and be specific, the learned counsel for the appellant first of all assails the finding of the Tribunal on the monthly income of the appellant. An amount of Rs.2,500/- was reckoned as the monthly income. The learned counsel for the appellant submits that even in the absence of better evidence, following the dictum in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. M.A.C.A No.1609 of 2011-C 3 Mohammad Tabbar & Anr. [2008 ACJ 1488], at least Rs.3,000/- must have been reckoned as the income of the appellant at the time of the accident. Giving due provision for improvement of prospects in employment, a higher amount must have been reckoned as the monthly income while computing the reduction in earning capacity. We agree with the learned counsel for the appellant. We are satisfied that Rs.3,000/- per mensem can be reckoned as the monthly income at the time of the accident and Rs.3,500/- can be reckoned as the monthly income while ascertaining the quantum of compensation payable for reduction in earning capacity. Consequently the amount awarded under the loss of earnings and for the loss of earning capacity will have to be enhanced. 4. The learned counsel for the appellant submits that even though the appellant was an inpatient for a period of 52 days and had continued treatment thereafter, the Tribunal had reckoned only 3 months as the period of involuntary unemployment. We agree with the learned counsel and hold that there must have been involuntary unemployment for a period of 5 months. For bystander's expenses and extra nourishment, a total amount of Rs.4,000/- (3,000 plus 1,000) has been awarded. M.A.C.A No.1609 of 2011-C 4 We are satisfied that compensation @ Rs.100/- per day of hospitalisation under each head for the entire period of hospitalisation can be awarded under the heads of bystander's expenses and extra nourishment. 5. For loss of amenities, an amount of Rs.25,000/- has been awarded. The learned counsel for the appellant submits that the Tribunal had arbitrarily slashed down the 32% of physical disability certified in Ext.A6 by PW1 to a reduction in earning capacity of 20%. Visual disability as well as neurological disability have been suffered. The learned counsel argues that the Tribunal had erred grossly in reckoning only 20% as the extent of reduction in earning capacity. Taking all the relevant circumstances into account, we are satisfied that the total reduction in earning capacity can be reckoned at 25%. We do bear in mind the fact that the extent of physical disability and the extent of reduction in earning capacity are different concepts and considering the nature of employment and the nature of physical disability 25% can safely be reckoned as the extent of reduction in earning capacity. 6. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.90,400/- as M.A.C.A No.1609 of 2011-C 5 compensation as shown below in addition to the amount already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs.7,500.00 (3,000 X 5=15,000 minus Rs.7,500/-) ii) Bystander's expenses and extra nourishment : Rs. 6,400.00 (52daysXRs.200=Rs.10,400 minus Rs.4,000/-) iii) Reduction in earning capacity : Rs.76,500.00 (3500X 12 X 17 X 25/100 = 1,78,500 minus 1,02,000) ------------------- Total : Rs.90,400.00 ======== 7. We are not persuaded to agree that the amount of compensation awarded under any other head deserves modification/enhancement. 8. 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.90,400/- (Rupees Ninety thousand four hundred 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.1609 of 2011-C 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) (K.SURENDRA MOHAN, JUDGE) rtr/