IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 MACA.No. 1822 of 2005() ----------------------- OPMV.1050/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, (ADDITONAL DISTRICT JUDGE) THALASSERY .................... APPELLANT/PETITIONER: --------------------------- N.S.MANJU, S/O.MINJAPPA, SEETHIKONDA, MALLOONA HALLY P.O., SHIMOGA DISTRICT, KARNATAKA STATE BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT/RESPONDENTS NO.3: ---------------------------------------- THE UNITED INDIA INSURANCE CO LTD., THALASSERY. BY ADV. SRI.P.M.M. NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ----------------------------------------------- M.A.C.A No. 1822 OF 2005 ----------------------------------------------- Dated this the 6th day of March, 2009 JUDGMENT BASANT, J Claimant before the Tribunal is the appellant before us. He claimed compensation for injuries suffered in a motor accident which occurred on 06.02.02. An amount of Rs.1,50,000/- was claimed as compensation. He claimed to be a tiller driver aged 24 years and earning an income of Rs.5,000/- per mensem. He had suffered fracture of left femur. He was an impatient for a period of 16 days. He had allegedly suffered permanent disability, which was assessed by a doctor at 28% of the limb concerned and 10% over all. Tribunal on an anxious evaluation of the materials available came to the conclusion that appellant is entitled for an amount of 52,750/- as compensation along with interest at the rate of 9% from the date of petition as per the details given below: 1. Bystander’s expenses : Rs. 1,600/- 2. Extra nourishment : Rs. 800/- 3. Damage to clothing : Rs. 400/- 4. Medical expenses(supported by bills): Rs.11,325/- 5. Loss of earning (1,500 X 6) : Rs. 9,000/- 6. Pain and sufferings : Rs.16,000/- MACA:1822/05 -:2:- 7. Compensation for discomfiture : Rs. 8,000/- and other inconveniences 8. Expenses for future treatment : Rs. 5,000/- 9. Transportation expenses : Rs. 500/- ----------------- Total : Rs.52,750/- ========== 2. Appellant claims to be aggrieved by the impugned award. What is the reason ? Learned counsel for the appellant contends first of all that no amount has surprisingly been awarded for reduction in earning capacity consequent to the disability suffered. The doctor who issued Ext.A5 disability certificate was examined before the Court as PW2. He had asserted that the appellant suffered a permanent disability of 10%. He admitted that the implant will have to be removed. In the course of examination he made a statement that, if Ilizarov Treatment were taken, there is possibility of disability being reduced to 4%. The Tribunal in these circumstances though accepted that disability has resulted and compensation for loss of amenities has to be granted did not accept the appellant’s case that reduction in earning capacity has resulted from the injury and the consequent physical disability. The appellant was employed as a tiller driver. It is true that the MACA:1822/05 -:3:- doctor had said that after the implant was removed and thereafter if Ilizarov treatment were undergone the percentage of physical disability at 10% may get reduced to 4%. The learned counsel for the appellant strenuously contends that the Tribunal was not justified in turning down the claim for compensation for reduction in earning capacity consequent to disability. Counsel contends that in these circumstances appropriate percentage reduction in earning capacity must be accepted and expenses for future treatment now awarded at Rs.5,000/- has to be raised. We find merit in the said contention of the learned counsel for the appellant. Extent of reduction in earning capacity which may ultimately result cannot be identified with precision and accuracy now on the basis of materials available. But, we are in agreement with the learned counsel for the appellant that the Tribunal erred grossly in not awarding any amount under the head of reduction in earning capacity. In the circumstances of the case we are satisfied that, it would be absolutely reasonable to assume that the appellant had suffered 6% reduction in earning capacity consequent to the physical disability suffered by him, even MACA:1822/05 -:4:- assuming that ultimately only 4% physical disability may result. We take note of the nature of the employment of the appellant as tiller driver and disability suffered to the leg. We are in these circumstances satisfied that, reckoning the percentage of reduction in earning capacity as 6% would be absolutely reasonable. Consequently, appellant will be entitled to a further amount of Rs.18,360/-(1,500 x 12x 17x 6/100). 3. We have taken note of the opinion that the disability can be further brought down on the assumption that if the appellant gets in the implant removed and also Ilizarov treatment done. Only an amount of Rs.5,000/- has been awarded under further expenses for treatment. We are satisfied that the compensation under such head can safely be fixed at an amount not below Rs.12,500/-. Appellant will consequently be entitled to a further amount of Rs.7,500/- under that head also. We are not satisfied that the amounts awarded under any other head deserves any interference. We are satisfied that reckoning of the amount of Rs.1,500/-, as monthly income does not warrant interference. 4. On the basis of the above discussions, we come to the MACA:1822/05 -:5:- conclusion that the appellant is entitled for a further amount of Rs.25,860/-(18,360+ 7,500). Needless to say, the entire amount of compensation shall carry interest from the date of the petition at the rate directed by the Tribunal. This appeal accordingly is allowed in part to the above extent. R. BASANT, JUDGE C.T. RAVIKUMAR, JUDGE ttb MACA:1822/05 -:6:- MACA:1822/05 -:7:-