IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 MACA.No. 861 of 2005() ---------------------- OPMV.107/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ----------------------------------- JOSE, S/O. VARKEY, POTTASSERY HOUSE, PAZHOOR KARA, PIRAVOM. BY ADV. SRI.K.PAUL KURIAKOSE RESPONDENTS/ RESPONDENTS: --------------------------- 1. SAJU, S/O. VARKEY, MOONJANATTU HOUSE, PIRAVOM, NOW RESIDING AT T.C.10/2121, KANJIRAMPARA P.O., THIRUVANANTHAPURAM-30. 2. M/S. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE NO.1, SOUNDARYA BUILDING, M.G. ROAD, THIRUVANANTHAPURAM-1. ADV. SMT.SARAH SALVY FOR R-2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A.No.861 of 2005 ---------------------------------------- Dated this the 19th day of August 2011 J U D G M E N T R.BASANT,J Claimant is the appellant. He claimed compensation for personal injuries suffered in a motor accident which took place on 29/09/1999. He was an in-patient for a period of 14 days. He had suffered fracture of medial end of left clavicle. There was bleeding from left ear. Right pinna was partially avulsed. Investigation confirmed fracture of the left clavicle. There was focal sub arachnoid hemorrhage in the right temporal parietal region. There was fracture of the left squamous temporal bone. He was admitted on 30/09/2009 and was discharged on 13/10/1999. A document described to be the disability certificate was produced and attempt was made to prove the same through its author/PW1. We have perused the copy of Ext.A7 placed before us which is as vague as vagueness can be. It is not in the form of a certificate. Hearing loss on the left side is noted and percentage of disability is stated to be 47.49. There is no whisper in Ext.A7 which can suggest that the accident M.A.C.A.No.861 of 2005 2 suffered had caused or contributed to the hearing disability. PW1 in his evidence stated that he cannot deny the suggestion that the claimant had hearing loss even prior to the accident. The tribunal, in these circumstances, did not accept the alleged disability. Against a claim limited to Rs.1,50,000/-, the tribunal proceeded to award a total amount of Rs.36,800/- as per the details given below. Rs. 1. Loss of earnings 4,500/- (Rs.1,500/- x 3) 2. Partial loss of earning Nil 3. Expenses for transportation 1,000/- 4. Damages to clothing 300/- 5. Medical expenses 14,000/- 6. Expenses for attendant 1,000/- 7. Permanent disability Nil 8. Pain and suffering 12,000/- 9. Loss of earning power Nil 10. Loss of amenities 4,000/- ---------------- Total 36,800/- ======= M.A.C.A.No.861 of 2005 3 2. The said amount was directed to be paid along with interest at the rate of 9% per annum. 3. We have heard the learned counsel for the appellant and the insurance company. The learned counsel for the appellant assails the impugned award on the short ground that the quantum of compensation awarded is inadequate. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. 4. The learned counsel for the appellant, first of all, contends that the tribunal erred in assuming that the appellant, an agriculturist, was having a monthly income of only Rs.1,500/-. It is thus that compensation was awarded for loss of earnings at Rs.4,500/- (Rs.1,500/- x 3). The accident had taken place on 29/09/1999. There is no relevant input available to ascertain precisely the quantum of monthly income of the appellant. But, even in the absence of better evidence, we are in agreement that the tribunal could have realistically drawn reasonable inference about the monthly income of a 39 year old agriculturist like the claimant. We are satisfied that it would have been absolutely safe to assume that the appellant would M.A.C.A.No.861 of 2005 4 have earned an income of Rs.2,500/- per month. 5. It is next contended that the tribunal erred in not accepting that permanent disability had resulted due to the accident. We are unable to agree on the basis of Ext.A7 and the oral evidence of PW1 or the other materials available in this case that the appellant had suffered any permanent hearing disability on account of the accident and the trauma suffered by him. In the absence of better materials, we are in total agreement that the tribunal was correct in not accepting and acting upon the unsatisfactory certificate Ext.A7 and the inconclusive evidence of PW1. 6. The learned counsel for the appellant then contends that the amount awarded under the head of pain and suffering is inadequate. He was an in-patient for a period of 14 days. He had suffered serious injuries including a fracture. We are satisfied that an amount of Rs.15,000/- can be awarded under the head of pain and suffering. 7. The learned counsel for the appellant then contends that only an amount of Rs.1,000/- has been awarded for expenses of the attendant. No amount has been awarded under the head of extra nourishment. He was in the hospital for a period of 14 M.A.C.A.No.861 of 2005 5 days. We are in agreement that amounts must have been awarded under the head of extra nourishment. We are satisfied that an amount of Rs.200/- per day can be awarded under the composite head of bystanders expenses and extra nourishment. The appellant would consequently be entitled to an amount of Rs.2,800/- (Rs.200/- x 14) under that composite head. For loss of amenities, Rs.4,000/- has already been awarded. We note that though hearing disability has not been proved convincingly, there is indication to suggest that there was bleeding from left ear and the right pinna was partially avulsed. We are satisfied that the amount awarded under no other head deserves appellate interference. 8. On the basis of the above discussions, we come to the conclusion that the appellant is entitled to the following amount in addition to the amount awarded by the tribunal. i) Loss of earnings Rs.3,000/- [Rs.7,500/- (Rs.2,500/- x 3) minus Rs.4,500/-) ii) Bystander's expenses Rs.1,800/- and extra nourishment (Rs.200/- x 14 - Rs.1,000/-) iii) pain and suffering Rs.3,000/- (Rs.15,000/- minus Rs.12,000/-) M.A.C.A.No.861 of 2005 6 iv) Loss of amenities Rs.3,500/- (Rs.7,500/- minus Rs.4,000/-) -------------------- Total Rs.11,300/- ======== 9. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of Rs.11,300/- (Rupees eleven thousand and three hundred only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation from the date of the petition to the date of deposit/realisation as directed by the tribunal. d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge M.A.C.A.No.861 of 2005 7 M.A.C.A.No.861 of 2005 8 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010