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. 1633 of 2008(E) ----------------------- OPMV.2083/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/PETITIONER. ----------------------------------- SUNITHA W/O.PRABHAKARAN, P.S.NIVAS, KUZHIPARAMBU, NELLIMOODU P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENTS : RESPONDENTS --------------- 1. A.HAJAMYHUDEEN, S/O.MOHAMMED KHANNU, HAJA BUILDING, KONNIYOOR,POOVACHAL P.O., THIRUVANANTHAPURAM. 2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COM. LTD, THIRUVANANTHAPURAM. 3. ROBINSON, DOOR NO.11, PONNAMMAL ILLAM, POTTAVILA, PACODE P.O., K.K.DISTRICT, TAMIL NADU. 4. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD, THIRUVANANTHAPURAM. ADV. SMT.M.LALITHA NAIR FOR R2 SMT.P.K.SANTHAMMA FOR R4 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.1633 of 2008 ***************************** Dated this the 21st day of January, 2010 JUDGMENT BASANT, J. Injured claimant is the appellant. The challenge is against the quantum of compensation awarded. The 2nd respondent herein was made liable to pay the amount. The claimant is a 26 year old woman. She claims to be a tailor by profession earning a monthly income of Rs.4,000/-. She suffered injuries on 27.09.2003. She had sustained a head injury. There was transient loss of consciousness and vomiting. CT scan revealed fracture of the left frontal bone. Good recovery was made and she was discharged on 10.10.2003. She complained of permanent disability. Headache as well as dizziness off and on along with episodes of memory loss are the alleged disability. Ext.A13 disability certificate shows that the doctor assessed the physical disability at 20%. 2. The Tribunal on an anxious evaluation of all these relevant circumstances awarded a total amount of Rs.70,450/- as compensation as per the details shown below: M.A.C.A No.1633 of 2008 2 i) Pain and suffering : Rs.8,000/- ii) Loss of earnings (2 X 2000) : Rs.4,000/- iii) Damage to clothing : Rs. 250/- iv) Transportation charges : Rs. 500/- v) Bystander's expenses : Rs. 500/- vi) Treatment expenses : Rs.2,000/- vii) Loss of amenities : Rs.12,000/- viii) Loss of earning capacity (2000 X 12 X 18 X 10/100) : Rs.43,200/- ................... Total : Rs.70,450/- ................... The said amount was directed to be paid along with interest @ 7.5% per annum. 3. The appellant/claimant claims to be aggrieved by the impugned award. What is the grievance? The learned counsel for the appellant assails the impugned award on 2 main grounds. First of all it is contended that even though Ext.A13 shows disability of 20%, the Tribunal had without any reason reckoned only 10% as the reduction in earning capacity. It is next contended that for a 26 year old tailor woman, the Tribunal erred in reckoning only Rs.2,000/- as the monthly income. A M.A.C.A No.1633 of 2008 3 higher amount must have been reckoned as the monthly income, contends the learned counsel. 4. We have considered all the relevant inputs. The physical disability is certified in Ext.A13 to be 20%. Even without disagreeing with the assessment and evaluation of physical disability in Ext.A13, the court must make attempt to ascertain the percentage of reduction in earning capacity. The extent of physical disability cannot blindly and simply be assumed as the reduction in earning capacity. In the instant case we have been taken through Ext.A13 in detail. Transient loss of memory is the alleged basis of assessment of the disability. 10% has already been reckoned as the percentage of reduction in earning capacity. Even accepting Ext.A13 in full, we find no reason to interfere with the conclusion of the court below that 10% can be accepted as the reduction in earning capacity consequent to the alleged physical disability. 5. The counsel contends and we find force in the contention that the monthly income reckoned at Rs.2,000/- is too inadequate. The counsel brings our attention to the fact that as M.A.C.A No.1633 of 2008 4 early as in 1994 when the second schedule was introduced into the statute book to govern a claim under Section 163 A of the Motor Vehicles Act, the legislature had permitted a presumption of prudence that even for a non earning person Rs.1,250/- can be reckoned as the monthly earnings. Drawing inspiration from that input, we agree with the learned counsel for the appellant that a higher amount can be assumed to be the earnings of the claimant at the relevant time. We are satisfied, in these circumstances, that Rs.3,000/- can be reckoned as the monthly income of the claimant, a woman tailor. Accordingly the compensation awarded can be reworked. 6. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount of compensation in addition to the amounts awarded by the Tribunal. i) Loss of earning [(2 X 3000) 6000 minus 4000] : Rs. 2,000/- ii) Reduction in earning capacity [(3000 X 12 X 18 X 10/100) Rs.64,800 minus Rs.43,200]: Rs.21,600/- ................... Total Rs.23,600/- ................... M.A.C.A No.1633 of 2008 5 7. In the result: i) This appeal is allowed in part; ii) The appellant is found entitled to receive from the 2nd respondent a further amount of Rs.23,600/- (Rupees Twenty three thousand and six hundred only) in addition to the amounts already awarded by the Tribunal; iii) 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 directed by the Tribunal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-