IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 MACA.No. 763 of 2005() ---------------------------------- OP(MV)NO.1219/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPLICANT ------------------------------------------- SURESH KUMAR.V.R., AGED 29, S/O.VIDYADHARAN, MUDAMBIL VEEDU, T.C.31/450, KALLUMOODU, ANAYARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): --------------------------- 1. L.PARAMESWARAN, ASWATHY, T.C.3/1883, PATTOM, THIRUVANANTHAPURAM. 2. THAMPI.S., S/O.SHANU N.H., CHARUVILA PUTHEN VEEDU, KUMARAPURAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM. 3. THE MANAGER, THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICER NO.II, ST.MARY VILLA, ULLOOR, MEDICAL COLLEGE, THIRUVANANTHAPURAM. R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- C.M.Appl.No.1052 of 2005 & M.A.C.A.No.763 of 2005 ---------------------------------------------------- Dated this the 21st day of July, 2011 Order/Judgment Basant, J. C.M.Appl.No.1052 of 2005 Heard both sides. Delay condoned. M.A.C.A.No.763 of 2005 Claimant is the appellant. He claimed compensation for personal injuries suffered in a motor accident which took place on 26.2.2000. Against a claim for Rs.2 lakhs, the Tribunal awarded an amount of Rs.78,521/- as compensation as the details given below: 1. Loss of earnings(3 x 2000) - Rs.6,000/- 2. Medical expenses - Rs.5,871/- 3. Transportation - Rs.1000/- 4. Clothing - Rs.250/- 5. By-stander's expenses - Rs.1,000/- 6. Extra-nourishment - Rs.1,000/- 7. Pain and suffering - Rs.15,000/- 8. Disibility (2000x12x16x10/100) - Rs.38,400/- 9. Loss of amenities - Rs.10,000/- ----------------- Total - Rs.78,521/- ========== 2. The challenge is only against the quantum of C.M.Appl.1052/05 & MACA 763/05 2 compensation awarded. Called upon to be specific, the learned counsel for the appellant first of all contends that the Tribunal had grossly erred in reckoning the monthly income of the appellant who is stated to be an A.C.Mechanic/Operator. Some materials were produced in support of the assertion that he is an A.C.Mechanic. Against the claim of Rs.6,000/- per mensem, the Tribunal accepted only Rs.2000/- as the monthly earnings. This is painfully low and unrealistic, contends the learned counsel for the appellant. The accident had taken place in 2000 and clause 6 of Second Schedule of the M.V.Act enables the court to draw the presumption of prudence even in 1994 that the monthly income of a non-earning person is Rs.1250/-. In that view of the matter, a higher amount should certainly have been reckoned as the monthly wages, contends counsel. We find force in the contention. Rs.3000/- appears to us to be a fair and reasonable amount of monthly income even in the absence of any better evidence. 3. The next ground of challenge is the allegedly unjustified slashing down of the percentage of reduction in earning capacity from 13 to 10 by the Tribunal. The learned counsel for the C.M.Appl.1052/05 & MACA 763/05 3 appellant relies on Ext.A7 disability certificate. We have been taken through the disability certificate. The Assistant Professor of the Medical College, Trivandrum has given details of the various disabilities and the percentage of permanent physical disability. 13% is shown as the physical disability. We note that there were type III fracture of the right tibial condyle. Left clavical was also fractured. Ext.A7 reveals that 24 instances of disabilities were noted by the doctor who issued the same. We are conscious of the fact that physical disability is distinct and separate from reduction in earning capacity. But, in the facts and circumstances of this case, considering the nature of disability and the nature of the employment of the appellant as an A.C.Mechanic, we are of the opinion that there was no compelling necessity to slash down the percentage of reduction in earning capacity from 13% to 10%. 4. Even though there is a contention raised that the amounts awarded under the head of pain and suffering and loss of amenities are too low, we are of the opinion that the amounts awarded under the said heads do not warrant interference taking into account the fact that the accident has taken place on C.M.Appl.1052/05 & MACA 763/05 4 26.2.2000. The amounts awarded do appear to be fair and reasonable. 5. The above discussion leads to the conclusion that the appellant is entitled to a further amount of Rs.39,480/ as compensation in addition to the amounts already awarded by the Tribunal as per the details shown below: 1. Loss of earnings(3000 x 3 - 6000) - Rs.3,000/- 2. Compensation for reduction in earning capacity (3000x12x16x13/100 minus 38400) - Rs.36,480/- ----------------- Total - Rs.39,480/- ========== 6. In the result: a) This appeal is allowed in part. b) The appellant is found entitled to an amount of Rs.39,480/-in addition to the amounts already awarded by the Tribunal. c) All other directions issued by the Tribunal are upheld. R. BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd C.M.Appl.1052/05 & MACA 763/05 5