IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 MACA.No. 1404 of 2005() ----------------------- OPMV.1238/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/CLAIM PETITIONER ---------------------------------------- M.U.JOHN,S/O.UTHUP,MANGATTU HOUSE, NATTAKOM KARA,NATTAKOM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.P.RAVINDRA BABU SRI.VARGHESE PREM RESPONDENT(S): --------------- 1. JOSE,PAZHAYANKAVIL HOUSE, KADATHURUTHY P.O.,KOTTAYAM. 2. JOSE MATHEW,AROOKUZHUPPIL HOUSE, MUTTUCHIRA,KADATHURUTHY,KOTTAYAM. 3. THE UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * M.A.C.A.No.1404 of 2005 ---------------------------------------- Dated this the 3rd day of April 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He claimed compensation for personal injuries suffered in an accident which occurred on 02/06/1996. He is a lorry cleaner by occupation. He claimed that he was earning an income of Rs.3,000/- per mensum. Achilles tendon was cut and that is the major injury suffered. He was an in-patient for a period of two days at the Kasthurba Hospital, Manipal. Later he was shifted to the Medical College Hospital, Kottayam. He was an in-patient for a period of 10 days in the latter hospital. He is alleged to have suffered permanent disability. The court, at the time of his examination long after the accident, found that he had swelling at the site of fracture. The medical officer who issued Ext.A7 medical report came to the conclusion that the percentage of physical disability can be reckoned at 25%. That medical certificate was opposed vehemently. No person was examined to M.A.C.A.No.1404/05 2 prove that medical certificate. Before the tribunal, no oral evidence was adduced. Exts.A1 to A11 were marked. 2. The tribunal on an anxious consideration of all the relevant inputs came to the conclusion that the appellant is entitled to a total amount of Rs.35,600/- as compensation as per the details shown below: 1. Treatment expenses Rs.2,600/- 2. Loss of earnings Rs.6,000/- (Rs.1,500 x 4) 3. Transportation charges Rs.1,000/- 4. Pain and suffering Rs.10,000/- 5. Bystanders expenses Rs.1,500/- 6. Loss of amenities Rs.15,000/- Total Rs.35,600/- The said amount was directed to be paid along with interest @ 9% per annum from the date of the petition to the date of payment. 3. The appellant claims to be aggrieved by the impugned award. What is his grievance? Called upon to explain the precise nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant mainly contends that the tribunal erred in awarding only an amount of Rs.15,000/- as compensation for loss of amenities. The tribunal M.A.C.A.No.1404/05 3 ought to have awarded compensation for loss of earning capacity. Ext.A7 certificate clearly shows that the appellant has suffered physical disability. Of course, the author of Ext.A7 certificate has not been examined; but the nature of the injury may be taken note of. It may also be noted that Ext.A7 certificate had been produced. It may further be seen that the learned tribunal had seen that even when the appellant was in court more than 6 years after the accident, the appellant had swelling at the site of the injury. In these circumstances, the disability certificate Ext.A7 ought to have been accepted. At any rate, reasonable percentage of reduction in earning capacity must have been fixed by the tribunal and compensation for loss of earning capacity ascertained by adopting the multiplier-multiplicand method. The learned counsel, of course, challenges the quantum of compensation awarded under the other heads. 4. The learned counsel for the insurance company, on the contrary, contends that Ext.A7 certificate was rightly not accepted by the tribunal. The contents of Ext.A7 certificate cannot inspire confidence. It is idle to expect a court to swallow such statement of medical practitioners in reports/certificates submitted by them. The learned counsel for the insurance company submits that the tribunal evidently was satisfied that there was some resultant discomfieture M.A.C.A.No.1404/05 4 following the accident and the injury. The appellant was well compensated by awarding an amount of Rs.15,000/-under the head of loss of amenities. No further amounts are payable. The learned counsel for the appellant contends that the tribunal had not realistically taken into account the expenses for transportation. The appellant had to be shifted from the hospital at Manipal to the Medical College hospital at Kottayam. The tribunal was satisfied that long after the accident when the appellant was seen by the tribunal, he had swelling at the site of the injury. In these circumstances, a total amount of Rs.2,5000/- awarded under the head pain and suffering and loss of amenities is absolutely justified and by no stretch of imagination, can it be contended that any further amount need be awarded taking into consideration the reduction in earning capacity which must have been suffered. 5. We have considered all the relevant circumstances. We do not find merit in the challenge raised on any other ground. But we are persuaded to agree that the tribunal, even in the absence of crisp, cogent and specific evidence on the extent of disability and the consequent reduction in earning capacity suffered by the appellant, must have realistically taken note of the undisputed physical disability suffered and appropriate amount of compensation must have been awarded. Rs.1,500/- has been reckoned as the M.A.C.A.No.1404/05 5 monthly income. Taking into account the age of the appellant under the 2nd schedule, 16 can safely be accepted as the multiplier. We do further note that even in the absence of any better evidence, 7.5% can be reckoned as the irreducible minimum amount of disability/reduction in earning capacity. We take note of the nature of the employment of the appellant - as a cleaner of the lorry. 6. We are, in these circumstances, satisfied that the tribunal must have awarded an amount of Rs.21,600/- (Rs.1,500/- x 12 x 16 x 7.5/100) as compensation under the head of reduction in earning capacity. Needless to say, interest shall be payable on the entire amount of compensation from the date of the petition at the rate awarded by the tribunal. 7. In the result, this appeal is allowed in part. The appellant is entitled to a further amount of Rs.21,600/- (Rupees twenty one thousand six hundred only) as compensation in addition to the amounts awarded by the Tribunal. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.1404/05 6 M.A.C.A.No.1404/05 7 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009