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 14TH JANUARY 2010 / 24TH POUSHA 1931 MACA.No. 808 of 2003(C) ---------------------- OPMV.891/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/PETITIONER: ----------------------------------- V.SHAMEER, SEMIN MANZIL, KARIYAM, KAZHAKUTTAM, THIRUVANANTHAPURAM. NOW RESIDING AT MELEPUTHEN VEEDU, ARUMALOOR, KANDALA P.O., KARRAKKADA, NEYYATTINKARA. BY ADV. SRI.PRATHEESH.P RESPONDENTS : RESPONDENTS: --------------------------- 1. P.ABDUL REHMAN, T.C.9/2180, MADRAS LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM. 2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., MALANKARA BUILDING, L.M.S COMPOUNT, THIRUVANANTHAPURAM. ADV. SRI.S.MUHAMMED HANEEF FOR R1 SRI.P.MURALEEDHARAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ M.A.C.A No.808 of 2003 ------------------------------------- Dated this the 14th day of January 2010 JUDGMENT BASANT, J. Claimant is the appellant. He filed an application claiming an amount of Rs.4 lakhs as compensation for injuries suffered by him in a motor accident, which took place on 13.12.1999. He had suffered multiple injuries including fracture of ribs and the left clavicle. He was an inpatient for a period of 31 days. He had allegedly suffered permanent disability including visual disability. 2. Before the Tribunal, the claimant examined himself as PW1 and proved Exts.A1 to A11. 3. The Tribunal on an anxious consideration of all the relevant inputs came to the conclusion that the claimant is entitled to a total amount of Rs.1,19,700/- as per the details given below: i) Loss of earnings (Rs.2,000 X 4 months) : Rs.8,000/- ii) Medical expenses : Rs.7,400/- (against bills produced) M.A.C.A No.808 of 2003 2 iii) Loss of amenities : Rs.10,000/- (described as compensation for discomfort and inconvenience) iv) Expenses for transportation : Rs.1,000/- v) Bystander's expenses : Rs.1,000/- vi) Pain and suffering : Rs.15,000/- vii) Reduction in earning capacity (2000 X 12 X 16 X 20/100) : Rs.76,800/- viii) Damage to clothing : Rs. 500/- ................... Total : Rs.1,19,700/- ..................... 4. The claimant/appellant claims to be aggrieved by the impugned award. According to him, the quantum of compensation awarded is not just and reasonable. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on various grounds. 5. First of all it is contended that the monthly income of the appellant reckoned by the Tribunal at Rs.2,000/- per mensem is grossly inadequate. The appellant was an expert gold worker. According to him, his monthly income for such skilled work exceeds Rs.5,000/-. No documents were produced in support of M.A.C.A No.808 of 2003 3 that assertion. The learned counsel for the appellant contends that a Court must realistically accept the difficult of a gold worker like the appellant to produce authentic evidence about his monthly income. Even in the absence of better evidence, the Tribunal should have reasonably assumed that a gold worker like the claimant/appellant must have been earning an income far exceeding Rs.2,000/-. The court below was not fair or reasonable in reckoning the income only at Rs.2,000/- per mensem. The claimant is a person aged about 38 years and having a family of his wife and 2 minor children depending on him. In these circumstances, a higher amount must have been reckoned as the monthly income. To support the said contention, the learned counsel for the appellant brings to the notice of the Court that as early as in 1994, in the second schedule to the Motor Vehicles Act, Rs.1,250/- is permitted to be assumed to be the monthly income of even a non earning person. The incident in this case had taken place 5 years after the statute made that presumption. In these circumstances, the counsel requests that reasonable enhancement of the monthly income may be granted. 6. We have gone through the materials available. We are persuaded to accept the contention of the learned counsel M.A.C.A No.808 of 2003 4 for the appellant. In the facts and circumstances of this case, we are of the opinion that it would be absolutely reasonable to assume Rs.3,000/- to be the monthly income of the claimant/appellant. 7. The learned counsel for the appellant then contends that on a realistic consideration of the nature of the multiple injuries suffered by the claimant, the period of hospitalisation and the nature of the treatment after discharge, the court below should have taken the view that there must have been involuntary unemployment on account of the accident and injuries at least for a period of 6 months. The Tribunal had taken into consideration only 4 months as the period of involuntary unemployment. We find force in this contention. Taking all the relevant inputs into account, we accept that for at least a period of 6 months, the appellant must have been involuntarily unemployed on account of the accident, injuries and treatment. Accordingly the amount awarded under the head `loss of earnings' can safely be reckoned as Rs.18,000/- (ie. Rs.3,000/- X 6). 8. The learned counsel for the appellant then contends that bystander's expenses has been awarded at a perversely low M.A.C.A No.808 of 2003 5 figure of Rs.1,000/- in the wake of unassailable evidence to show that the appellant was an inpatient for a long period of 31 days. No amount has been awarded under the head of extra nourishment also, contends the learned counsel. Under the composite head of bystander's expenses and extra nourishment, a much higher amount deserves to be granted to the appellant, contends the learned counsel. 9. We find merit in that contention. There has been hospitalisation for a period of 31 days. We find it absolutely safe to hold that an amount of Rs.5,425/- (ie. 31 days X 175) can be awarded as compensation under the head of extra nourishment and bystander's expenses. 10. The learned counsel for the appellant then contends that the Tribunal erred grossly in reckoning the extent of disability as 20% only. In this context the counsel relies on Exts.A8 and A9 disability certificates. Ext.A9 disability certificate shows that there is a visual disability of 20%. Ext.A8 disability certificate shows that including visual disability, the overall disability is 25% only. The Tribunal had on the materials available reckoned the reduction in earning capacity consequent to the disabilities noted in Exts.A8 and A9 as 20%. M.A.C.A No.808 of 2003 6 11. We have gone through Exts.A8 and A9. We are not persuaded to agree that the said conclusion of the Tribunal can in any way be faulted. The experts who issued Exts.A8 and A9 have not been examined. In these circumstances, we find it safe to come to the conclusion that reckoning of 20% as the reduction in earning capacity consequent to the physical disability noted in Exts.A8 and A9 is absolutely acceptable. We find no reason to interfere with that conclusion. We have already taken the view that Rs.3,000/- per mensem can be reckoned as the earning of the claimant. In the light of that input, the compensation awarded under the head of loss of earning capacity deserves to be reworked and we find that the claimant is entitled to an amount of Rs.1,15,200/- (ie. 3000 X 12 X 20/100 X 16) as compensation for loss of earning capacity. 12. The counsel argues that only an amount of Rs.10,000/- has been awarded as compensation for loss of amenities describing the same to be discomfort and inconvenience. The appellant was aged only 38 years at the time of the accident. He will have to live for a long period enduring the disabilities. The disabilities suffered are not likely to have impact not only on the earning capacity, that would also upset, impair and reduce the M.A.C.A No.808 of 2003 7 quality of enjoyment of life of the appellant. In this context the counsel for the appellant wants this Court to take note of the nature of the disabilities including visual disability, which is likely to hurt the appellant every moment of his life hereafter. We are persuaded to agree that a higher amount of compensation is liable to be awarded under the head of loss of amenities in addition to the amounts awarded under the head of loss of earning capacity consequent to disability. An amount of Rs.20,000/- can be awarded as compensation under the head of loss of amenities. 13. In the light of the above findings, we hold that the appellant/claimant is entitled to the following further amounts as compensation in addition to the amounts already awarded by the Tribunal. i) Loss of earnings (18,000/- minus 8000) : Rs.10,000/- ii) Bystander's expenses and extra nourishment (5,425/- minus 1,000) : Rs. 4,425/- iii) Reduction in earning capacity consequent to physical disability (1,15,200 minus 76800) : Rs.38,400/- M.A.C.A No.808 of 2003 8 iv) Reduction in earning capacity (20000 minus 10000) : Rs.10,000/- .................. Total : Rs.62,825/- .................. 14. In the result: a) This appeal is allowed in part; b) The appellant is found entitled to a further amount of Rs.62,825/- (Rupees Sixty two thousand eight hundred twenty five only) in addition to the amounts already awarded by the Tribunal; c) Needless to say, the appellant shall be entitled for interest on the entire amount from the date of petition as already ordered by the Tribunal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-