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. 925 of 2005(D) ---------------------- OPMV.1438/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT: APPELLANT ----------------------- VENU, S/O.RAMAN, VISHNU NIVAS, NEAR VALLAKOM SUB STATION, PADINJAREKARA KARA, NADUVILE VILLAGE, VAIKOM, KOTTAYAM. BY ADV. SRI.P.S.NANDANAN SRI.B.SABU SRI.P.N.ANOOP RESPONDENT(S): --------------- 1. MANAGING DIRECTOR, STATE EXPRESS TRANSPORT CORPORATION IN DIV-I, PALLAVAN SALAI, CHENNAI (OWNER). 2. YASIN, S/O.ABDULLA, DOOR NO.103, KOTTAIKAL STREET, NEAR OLD PANCHAYAT OFFICE, MELOOR TALLUK, MADHURAI DISTRICT. ADV. SRI.SUBHASH CYRIAC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.925 of 2005 ------------------------------------- Dated this the 3rd day of April, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He had suffered personal injuries in an accident which occurred on 23.03.2001. He was aged 37 years on the date of the accident and he was employed as Principal and Director of a Teachers' Training College. He claimed that he was getting an amount of Rs.8,000/- per mensem. He suffered multiple injuries including loss of teeth, fracture of maxilla on both sides, fracture mandible right and left condyle, fracture mandible symphysis as also fracture of the shaft of radius (left). He was an inpatient for a period of 10 days. He had to continue treatment thereafter. He allegedly suffered permanent physical disability which was certified to be 15% by the doctor in Ext.A8. Before the Tribunal the appellant examined himself as PW1. Exts.A1 to A14 were marked. 2. The Tribunal on an anxious consideration of all the relevant inputs came to the conclusion that the appellant is entitled to an amount of Rs.1,00,285/- as compensation as per the details shown below: M.A.C.A No.925 of 2005 2 1. Loss of earning Rs.18,000/- (6 X 3000) 2. Transport to hospital Rs. 2,000/- 3. Medical expenses Rs.34,785/- (covered by bills) 4. Bystander's expenses Rs. 2,000/- 5. Pain and suffering Rs.12,500/- 6. Compensation for disability/ loss of amenities (global amount fixed) Rs.30,000/- Total Rs.1,00,285/- The said amount was directed to be paid along with interest @ 6% per annum. 3. The appellant claims to be aggrieved by the impugned award. What is the 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 assails the impugned award on various grounds. 4. First of all it is contended that the interest has been awarded only @ 6% per annum. Relying on precedents, it is contended that interest must have been awarded at least @ 7.5% per annum. We agree with the counsel. M.A.C.A No.925 of 2005 3 5. The learned counsel then contends that the monthly income of the appellant reckoned for the purpose of ascertainment of loss of earnings at Rs.3,000/- per mensem is grossly inadequate. No evidence whatsoever is produced to prove the monthly income of the appellant. In these circumstances, we take the view that the Tribunal cannot be faulted for drawing a presumption of prudence that at least Rs.3,000/- must have been earned every month by the appellant at the relevant time, in the absence of better evidence. It must have been very easy in the circumstances of the case to produce such evidence about income. The appellant can blame only himself for not enabling the Tribunal to pass a proper award if he feels that the award is not proper. 6. The learned counsel then contends that no amount has been awarded under the head `reduction in earning capacity' though the Tribunal had entered a positive finding that there has been disability to the extent of 12%. The Tribunal appears to have taken the view that an amount of Rs.30,000/- can be paid under the head compensation for disability/loss of amenities. But no amount has at all been awarded under the head reduction in earning capacity. We have been taken through Ext.A8 disability certificate in detail. The nature of the M.A.C.A No.925 of 2005 4 alleged disability suffered reveals that such disability was unlikely to have a direct substantial bearing on the earning capacity of the appellant. The appellant is stated to be the Principal of a Teachers' Training Institution. The disability includes tenderness and instability to inferior radio ulnar joint left. Nerve palsies were suffered, it is further noted. In these circumstances, we are further satisfied that though the percentage of physical disability certified in Ext.A8 to be 15% and accepted by the Tribunal to be 12%, may not result in reduction of earning capacity to an identical extent must certainly be held to reduce the earning capacity of the appellant. The Tribunal, we agree with the learned counsel for the appellant, erred in not awarding any amount under the head of loss of earning capacity. Taking the totality of circumstances into account, we take the view that the physical disability of 12% accepted by the Tribunal can safely be assumed to result in reduction in earning capacity to the extent of 5%. The appellant is entitled to be compensated for such reduction/impairment in the earning capacity. The appellant is shown to be aged 37 years on the date of the accident and 16, as stipulated in the second schedule, can be accepted as the multiplier. We are not M.A.C.A No.925 of 2005 5 persuaded to agree that the amount awarded under any other head warrants appellate interference. 7. The above discussions lead us to the conclusion that the appellants are entitled for a further amount of Rs.28,800/- under the head reduction in earning capacity (Rs.3000 X 12 X 16 X 5/100) in addition to the amounts already awarded by the Tribunal. 8. We further direct that the entire amount of compensation shall carry interest @ 7.5% per annum from the date of petition till payment. 9. This appeal is allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-