IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 MACA.No. 422 of 2006() ---------------------- OP(MV) NO.1296/2000 BY THE MACT, THIRUVANANTHAPURAM. ................. APPELLANT(S): APPELLANT ----------------------- SAJIMON.K.S., AGED 32, S/O.SASIDHARAN, SAJI BHAVAN, KKP NAGAR 21, KODUNGANOOR P.O., KULASEKHARAM, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): --------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM. 2. ELDOSE MATHEW, MELE PUTHENPURA, PAIPRA MANARI, MUVATTUPUZHA, ERNAKULAM. ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.A.C.A. No.422 of 2006 ------------------------------------------------- Dated this the 4th day of March, 2009 JUDGMENT Basant,J. The claimant before the Tribunal is the appellant before us. He claimed compensation for personal injuries suffered as also damage suffered by a vehicle (two wheeler) belonging to him in an accident which occurred on 1/9/2000. He was the rider of the two wheeler which was involved in the accident. He claimed an amount of Rs.3 lakhs as compensation. He claimed to be 26 years old. He was allegedly employed as a driver abroad. 1400 Saudi riyals – the Indian equivalent which is approximately Rs.15,000/- on the date of the petition, was claimed to be his monthly wages. He suffered fracture of the ulna. He was inpatient for a period of 7 days. He produced a medical certificate to show that he had suffered 6% disability. 2. Before the Tribunal two connected cases were M.A.C.A. No.422 of 2006 -: 2 :- disposed of together. The petitioner did not adduce any oral evidence. Exts.A1 to A8 were marked on his side. 3. The Tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant is entitled for an amount of Rs.38,530/- as compensation along with interest at the rate of 9% per annum. The details of the admitted claim are given below: 1. Pain and suffering - Rs.8,000/- 2. Loss of earnings - Rs.5,000/- (Rs.2,500/- x 2) 3. Medical Expenses - Rs.1,500/- (Against bills produced) 4. Transportation charges - Rs.500/- 5. Extra nourishment - Rs.500/- 6. Damage to clothing - Rs.250/- 7. Expenses for bystanders - Rs.500/- 8. Loss of earning capacity - Rs.17,280/- (Rs.2,000/- x 12 x 18 x 4/100) 9. Loss of amenities - Rs.5,000/- --------------- Total - Rs.38,530/- ========= 4. Called upon to explain the nature of challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on M.A.C.A. No.422 of 2006 -: 3 :- the following specific grounds. 5. First of all, the learned counsel for the appellant contends that the monthly income of the claimant, reckoned as Rs.2,500/-, to ascertain the actual loss of earnings as also loss of earning capacity is totally incorrect. It is pointed out that the Tribunal which accepted Rs.2,500/- as the monthly income for the purpose of ascertaining the loss of earnings did not reckon even that amount as the multiplicand while attempting to ascertain the loss of earning capacity. The learned counsel for the appellant submits that there is unassailable evidence to show that the appellant was employed abroad at the relevant time. Considering that circumstance, a higher multiplicand must have been taken both for ascertaining the loss of earnings as also the loss of earning capacity. 6. We are satisfied, considering the nature of employment of the appellant abroad, that different multiplicand can reasonably be adopted for ascertaining the loss of earnings and the loss of earning capacity. Loss of earning capacity is ascertained by adopting the multiplier 18 and the present lucrative employment of the appellant abroad cannot justify the adoption of the same income as the multiplicand applicable while computing the loss of earning capacity using the multiplier 18. M.A.C.A. No.422 of 2006 -: 4 :- Therefore, there is nothing wrong in the adoption of different multipliers while ascertaining the immediate loss of earnings and the future loss of earning capacity in the facts of this case. But we are in agreement with the learned counsel for the appellant that after accepting that the appellant was employed abroad accepting the monthly income as Rs.2,500/- only is not justified. We are satisfied, in the facts and circumstances of this case, that an amount of Rs.7,500/- can be reckoned as the present earnings of the appellant even in the absence of better and more satisfactory evidence. The mere production of the salary certificate cannot, in the facts and circumstances of this case, be reckoned as sufficient to jump to the conclusion that the amount shown therein can be accepted as the monthly income. 7. So far as the loss of earning capacity is concerned, it may not be proper to assume that the appellant would have earned income at that rate for the entire earning period. We are satisfied that accepting Rs.3,000/- as the multiplicand for the purpose of ascertainment of the loss of earning capacity would be absolutely justified. 8. The learned counsel contends that the two wheeler in which the appellant was travelling belonged to him and that had suffered damage and consequently amounts have to be paid for M.A.C.A. No.422 of 2006 -: 5 :- repair of the vehicle. Certain bills have been produced allegedly issued by the workshop where the repair was carried out. The Registration Certificate has not been produced. To assess the extent of damage, the Motor Vehicle Inspector’s report is not produced. Repairs have been got done even without seeking the help of the court to assess the damage suffered prior to getting the repairs done. The bills produced by the appellant allegedly issued by the workshop are certainly not sufficient to come to any authentic conclusion about the loss suffered by the appellant. It would be irrational. Totally unrealistic to place implicit reliance on such bills produced. 9. We are not, in these circumstances, satisfied that the Tribunal has committed any error warranting appellate interference in not awarding any amount as compensation for the damage suffered by the vehicle. 10. The learned counsel for the appellant contends that the percentage of physical disability was unjustifiably reduced from 6% as shown in Ext.A8 to 4% while determining the quantum of compensation for the loss of earning capacity. Ext.A8 has been thrust into court. The appellant was not sent to the Doctor or the Medical Board. The author of Ext.A8 disability certificate has not been examined. In these circumstances, the Tribunal M.A.C.A. No.422 of 2006 -: 6 :- committed no error in not swallowing Ext.A8 disability certificate as such in the absence of better materials. We shall, for a moment, assume that the physical disability to the tune of 6% has been suffered; but physical disability is not synonymous with reduction in earning capacity. The physical disability has a reflection on the earning capacity and it may not be safe and sound in all cases to assume that physical disability has resulted in reduction in earning capacity in to an identical extent. Considering the nature of disability revealed from Ext.A8 and the nature of employment of the appellant as driver, we are satisfied that the acceptance of only 4% as reduction in earning capacity for the disability suffered by the appellant does not also warrant any appellate interference. 11. The above discussions lead us to the conclusion that the appellant is entitled a further amount of Rs.18,640/- as per the details shown below: 1. Loss of earning - Rs.10,000/- more (Rs.7,500/- x 2 minus Rs.5,000/-) 2. Loss of earning capacity - Rs.8,640/- (Rs.3,000/- x 12 x 18 x 4/100 = Rs.25,920/- minus Rs.17,280/-) ---------------- Total - Rs.18,640/- ======= M.A.C.A. No.422 of 2006 -: 7 :- 12. The appellant shall be entitled to a further amount of Rs.18,640/- in addition to the amounts already awarded by the Tribunal. Needless to say, the entire amount of compensation shall bear interest at the rate directed by the Tribunal from the date of the petition. 13. This appeal is accordingly allowed in part to the above extent. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/ M.A.C.A. No.422 of 2006 -: 8 :-