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. 2959 of 2008() ----------------------- OPMV.763/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): PETITIONER ------------------------ V.K.RAJAN, VADAKKENEERPADIYIL, AYARKUNNAM, KOTTAYAM. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S): RESPONDENTS -------------------------- 1. RATHEESH, KAMALALAYAM HOUSE, AYARKUNNAM P.O., KOTTAYAM. 2. THE NEW INDIA ASSURANCE COMPANY LTD., CHANGANACHERRY. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 2959 OF 2008 --------------------------------------------------------- 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 the personal injuries suffered by him in a motor accident which took place on 12.11.2004. He limited his claim to Rs.1,50,000/-, though, according to him, the loss suffered was much more. The appellant was aged 52 years on the date of the accident. He claimed to be a bakery products maker/manufacturer earning an income of Rs.5,000/- per mensem. Fracture of the shaft of left femur is the injury suffered by him. He was an inpatient for a period of 13 days. He had allegedly suffered permanent partial disability as a result of the accident. According to him, he had suffered 6% physical disability as a result of the injuries suffered. 2. Before the Tribunal, Exts.A1 to A9 were marked. No other evidence was adduced. M.A.C.A NO.2959/2008 2 3. The Tribunal, on an anxious consideration of all the relevant inputs, proceeded to pass the impugned award directing payment of an amount of Rs.31,183/- along with interest at the rate of 7% per annum from the date of the petition. The details of the amounts awarded are given in paragraph 9 of the impugned award which we extract below: i. Loss of earnings (2 months taken)(2500x2) :Rs. 5,000/- ii. Transportation to hospital (No bills) :Rs. 500/- iii. Extra nourishment :Rs. 300/- iv. Bystander expenses(considering that he was admitted in the hospital for about 13 days) granting of Rs.1,300/- is fair and just. :Rs. 1,300/- v. Medical expenses( with bills) :Rs. 3,883/- vi. Pain and suffering (considering the location of the injury granting of Rs.10,000/- is fair and just) :Rs.10,000/- vii. Compensation for disability and loss of earning power if any (2500x12x8x3/100) since his age is taken as 55 multiplier applied is 8. :Rs. 7,200/- viii Loss of amenities (though not asked M.A.C.A NO.2959/2008 3 for considering the gravity of injuries granting of Rs.3,000/- is also just and fair. :Rs. 3,000/- --------------- Total :Rs.31,183/- --------------- 4. The appellant claims to be aggrieved by the impugned award. 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 raised two specific grounds. Counsel, first of all, contends that the Tribunal erred grossly in reckoning the monthly income at Rs.2,500/- only. Secondly, counsel contends that the Tribunal arbitrarily and without sufficient and satisfactory reasons reckoned only 3% as reduction in earning capacity though the claimant asserted and Ext.A9 disability certificate produced by him showed that he had suffered 6% permanent partial functional disability. It is prayed that the impugned award may be modified, taking into account the above two aspects. 5. To show the employment and income of the appellant, the appellant had produced Ext.A3 letter issued by the President of Ayarkunnam Grama Panchayat. The Tribunal considered Ext.A3, but did not accept the same. The Tribunal took note of the fact that if the M.A.C.A NO.2959/2008 4 petitioner was really engaged in such activity, dealing with bakery products, he must have taken the requisite licence. In the absence of documents to show the same and also in the absence of oral evidence to prove Ext.A3, the Tribunal did not swallow the contents of Ext.A3, but proceeded to draw a reasonable inference of prudence that the monthly income must have been around Rs.2,500/-. It is thus that the said figure was arrived at by the Tribunal. We find no reason justifying appellate interference with that conclusion of the Tribunal. 6. The next contention that Ext.A9 disability certificate should have been accepted in toto does not also find favour with us. Ext.A9 has not been strictly proved. Though 6% physical disability is certified in Ext.A9, the said certificate shows that the fracture was well united. Partial ankylosis of the left knee and partial ankylosis of the left hip are the alleged disabilities noted by the doctor. Even assuming that 6% functional physical disability has occurred, considering the nature of employment/activity of the appellant, we are not persuaded to agree that the course adopted by the Tribunal of reckoning 3% as the reduction in earning capacity is unreasonable or that it warrants appellate interference. We are satisfied, considering the totality of the circumstances, that the M.A.C.A NO.2959/2008 5 compensation awarded by the Tribunal is eminently reasonable, fair and just and the same does not, at any rate, warrant interference on the grounds referred above. 7. This Motor Accidents Claims Appeal is, in the circumstances, dismissed. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A NO.2959/2008 6 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.2959/2008 JUDGMENT 4th March, 2009 M.A.C.A NO.2959/2008 7