IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 MACA.No. 1842 of 2007() ----------------------- OPMV.476/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S)/PETITIONER: ----------------------------------- T.J. LAIJU, S/O. JOSEPH, THADATHIL HOUSE, KOOTTAR KARA, KOOTTAR P.O., KARUNAPURAM VILLAGE, IDUKKI. BY ADVS. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S): RESPONDENTS: --------------------------- 1. MATHEW JOSEPH @ ROY, PULICKAL HOUSE, KOOTTAR P.O., KARUNAPURAM P.O., IDUKKI. 2. THE UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY ITS DIVISIONAL MANAGER,MUVATTUPUZHA ADV. SRI.M.A.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO.1842 OF 2007 --------------------------------------------------------- Dated this the 3rd day of March, 2009 JUDGMENT Basant, J. The claimant before the Tribunal is the appellant before us. He suffered injuries in an accident which took place on 18.6.2003. He claimed an amount of Rs.7,00,000/- as compensation. The Tribunal awarded a total compensation of Rs.2,55,000/- as per the details given below: i. Loss of earning(2000x4) : Rs. 8,000/- ii. Transportation expenses : Rs. 4,000/- iii. Extra nourishment : Rs. 3,000/- iv. Bystander expenses : Rs. 4,000/- v. Treatment expenses : Rs. 16,500/- vi. Pain and suffering : Rs. 15,000/- vii. Disability (Rs.2000x12x 17x50/100) : Rs.2,04,400/- ------------------ Total : Rs.2,54,900/- ------------------ 2. According to the appellant, he was aged 21 years and was an autorickshaw driver by profession. He was allegedly earning an income of M.A.C.A. NO.1842/2007 2 Rs.3,500/- per mensem from such employment. He examined his employer, owner of the autorickshaw, and produced Ext.A7 certificate issued by him to confirm that his monthly income was Rs.3,500/-. The appellant further submitted that he remained in the hospital and underwent treatment for a period of 13 days. He had allegedly suffered permanent disability. His left leg had been amputated below the knee. According to him, he has suffered total permanent reduction in earning capacity in his employment as a driver by such disability. 3. The Tribunal accepted Rs.2,000/- as the monthly income of the appellant and reckoned that as the multiplicand. Ext.A5 disability certificate shows percentage of disability as 55, but the Tribunal reckoned reduction in earning capacity at 50% . The Tribunal correctly applied the multiplier of 17. For loss of amenities, no amount at all was awarded. Even though it was contended that the artificial limb will have to be periodically replaced/renewed, no amount of compensation was awarded towards future treatment. Further, interest was awarded only at the rate of 6% per annum. 4. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, learned counsel for the M.A.C.A. NO.1842/2007 3 appellant, first of all, contends that the adoption of Rs.2,000/- as the multiplicand is grossly inadequate. Counsel contends that there was absolutely no justifiable reason for not accepting Rs.3,500/- as the monthly income of the appellant as shown in Ext.A7 and as confirmed by the oral evidence of PW.1, the claimant himself, and PW.2 his employer. 5. The Tribunal did not accept the oral evidence of PWs.1 and 2 and Ext.A7 as gospel truth, but came to the conclusion that adoption of Rs.2,000/- as the monthly income of the appellant is reasonable. We are not persuaded to agree that the Tribunal has committed any error warranting appellate interference. Taking the totality of the circumstances into consideration, we concur with the conclusion of the Tribunal that Rs.2,000/- can be reckoned safely as the monthly income/multiplicand. 6. The next question is regarding the reduction in earning capacity. That the appellant was a driver by profession has been amply established by the oral evidence of the appellant himself and PW.2 and Ext.A7 certificate issued by PW.2. The driving licence of the appellant produced as Ext.A6 confirms the oral evidence of PWs.1 and 2 on this aspect. He is thus found to be an autorickshaw driver by profession. The Tribunal has accepted it and we find no reason to interfere with that conclusion on facts in the appeal. M.A.C.A. NO.1842/2007 4 7. The next question is about the percentage of reduction in earning capacity. As per the disability certificate, the appellant has suffered 55% physical disability. True that physical disability is not synonymous with reduction in earning capacity. Physical disability may have different reflection on the earning capacity of different individuals pursuing different avocation. Physical disability translated into functional disability in the area of work performed by the claimant is the reduction in earning capacity. The appellant was the driver of an autorickshaw. Amputation of his left leg below the knee will certainly affect his capability to work as a driver. It would be idle and myopic to reckon the physical disability itself as the reduction in earning capacity in the case of persons like the claimant herein pursuing an avocation where disability suffered is fatal to continue in such employment. Learned counsel for the appellant contends that 100% must have been reckoned as reduction in earning capacity. In support of his contention, counsel heavily relies on the decision of the Supreme Court reported in Pratap Narain Singh Deo v. Srinivas Sabata (1976)1 S.C.C. 289 and a later decision of the Supreme Court reported in K. Janardhan v. United India Insurance Co.Ltd. (2008)8 S.C.C. 518. Learned counsel further points out that the said proposition is accepted by another Division Bench of this Court in the decision reported in Jayaprasad v. Rejimon Philip, 2007(4) K.L.T. 623. M.A.C.A. NO.1842/2007 5 We have no quarrel with that proposition at all. Physical disability cannot mechanically or blindly be equated with reduction in earning capacity, unmindful of the peculiar nature of work which the disabled person is capable of performing. The two decisions of the Supreme Court referred above read along with the decision of the Division Bench of this Court, which is also referred above, clearly say that physical disability may have different reflections on the earning capacity of different individuals. We have already noted that the Tribunal had accepted the appellant to be an autorickshaw driver. The appellant was aged 21 years at the time of the accident. His earning capacity has been reduced on account of the disability. The loss suffered by him on account of the disability must be given due allowance. He is certainly expected to act in such a manner to reduce the loss suffered. He can pursue other employments which he is capable of performing. We are satisfied that 90% can, in these circumstances, be reckoned as loss of earning capacity of the appellant consequent to the physical disability suffered by him. Therefore, the amount to be awarded as compensation for reduction in earning capacity consequent to the physical disability suffered by the appellant is Rs.3,67,200/-(2000x12x17x90/100). Consequently, the appellant will be entitled to a further amount of Rs.1,62,800/- as compensation under this head. M.A.C.A. NO.1842/2007 6 8. The appellant, being a young man, must certainly have suffered loss of amenities consequent to the disability suffered by him. His marriage prospects must have been affected. The quality of life which he can aspire to enjoy for the rest of his life would certainly be adversely affected. The Tribunal, we note, has not awarded any amount under this head. We are satisfied that an amount of Rs.25,000/- under this head shall meet the ends of justice satisfactorily. 9. Though it was contended that future expenses will have to be incurred for replacing/renewal of the artificial limb, no amount has been awarded under that head. The appellant has a further grievance that the constant use of the artificial limb has resulted in ulceration at the relevant portion of the anatomy. We are satisfied that an amount of Rs.15,000/- towards future treatment/expenses shall be reasonable. 10. Counsel further contends that the interest awarded by the Tribunal at 6% per annum is not justified and that, at any rate, going by the precedents, interest must have been granted at 7.5% per annum. We agree with the learned counsel. 11. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.2,02,800/- as M.A.C.A. NO.1842/2007 7 compensation, in addition to the amount already awarded by the Tribunal, as per the details shown below: i. Loss of reduction in earning capacity : Rs.1,62,800/- ii. Loss of amenities : Rs. 25,000/- iii. Expenses for future treatment : Rs. 15,000/- ------------------ Total : Rs.2,02,800/- ------------------ We direct that the entire amount of compensation will carry interest at the rate of 7.5% per annum from the date of the petition. 12. The appeal is allowed in part to the above extent. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.1842/2007 8 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.1842/2007 JUDGMENT 3rd March, 2009