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. 2022 of 2006() ----------------------- OPMV.1407/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: ---------------------------------------- MOHANAN, S/O. THANKAPPAN, PAZHUPARAMBIL HOUSE, KOTTUVALLY, NORTH PARUR. BY ADVS. MR.K.S.SAJEEV KUMAR, MR.LAJI SAM ZACHARIAH. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. M. ASOKAN, PROPRIETOR, GIJAS RUBBERS DEVELOPMENT AREA, EDAYAR, BINANIPURAM. 2. SHAJIMON C.M., CHETHIPUZHA HOUSE, PATHAR (P.O), NILAMBOOR, MALAPPURAM DISTRICT. 3. THE NEW INDIA ASSURANCE CO. LTD., R.S. ROAD, ALUVA. R1 & R2 BY ADV.MR.VIJU ABRAHAM R3 BY ADV.MR.S.MAMMU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A No.2022 of 2006 ---------------------------------------- Dated this the 14th day of January 2010 J U D G M E N T Basant,J The claimant is the appellant. He claimed compensation for the loss suffered by him in a motor accident which took place on 18/3/2001. He had multiple injuries. He had suffered physical disability. He was travelling in a vehicle belonging to his employer along with others. To assess the percentage of physical disability, he was referred by the tribunal to a medical board. A medical board of three doctors examined him and issued Ext.A11 certificate to confirm that he suffers permanent partial orthopedic disability to the tune of 25% as per the Mc Brides scale. One of the doctors who constituted the medical board was examined as PW4. 2. The tribunal considering all circumstances by the impugned award directed payment of a total amount of Rs.2,07,210/- as per the details given below: Rs. Loss of earning (1,800/- x 6) = 10,800/- Transportation charges = 2,000/- Extra nourishment = 1,000/- M.A.C.A No.2022/06 2 Damage to clothing = 250/- Medical expenses = 1,01,320/- Attendance charges = 5,000/- Pain and sufferings = 20,000/- Loss of amenities = 15,000/- Disability = 51,840/- (Rs.1,800/- x 12 x16 x15/100) --------------- Total = 2,07,210/- ======= 3. The appellant claims to be aggrieved by the impugned award. What is his grievance? The learned counsel for the appellant assails the impugned award on various grounds. First of all, the learned counsel contends that the monthly income of the claimant was unjustifiably reckoned only at Rs.1,800/- whereas the salary certificate produced as Ext.A8 and the oral evidence of PW3 who proved Ext.A8 showed clearly that Rs.3,000/- was the monthly income. The learned counsel for the appellant submits that the tribunal did not have any reason to reject the salary certificate and the oral evidence of PW3 but surprisingly chose to take the view that the job of the appellant is not a permanent job and therefore only the notional income of Rs.1,800/- per mensum can be taken. The learned counsel for the appellant submits that it is not disputed by anyone that the M.A.C.A No.2022/06 3 appellant and the others who travelled with him in the vehicle were employees of the owner of the vehicle who was running the Gijas Rubbers at Edayar at Ernakulam. The learned counsel further submits that even without Ext.A8 and the oral evidence of PW3, it is very reasonable to assume that a young person aged about 40 years like the appellant engaged as a supervisor would get an amount of Rs.3,000/- as salary. 4. We find merit in the contention of the learned counsel for the appellant/claimant. We find no reason why the tribunal should have scaled down the monthly earnings of the appellant from Rs.3,000/- to Rs.1,800/-. The other contention of the learned counsel for the appellant is that 25% disability assessed by the medical board of three experts, that is Ext.A11, was lightly discarded by the court below and instead of 25% which is the assessment of extent of disability in Ext.A11, the tribunal arbitrarily and without justification assumed the disability to be only 15%. We find merit in this contention. We must note that Ext.A11 is issued not by any individual doctor but by a medical board constituted on the directions of the tribunal. There were three experts in the board and PW4 was one of the expert doctors - Ortho Surgeon who constituted the medical board. Relevant details are given in Ext.A11 as to why and how it is M.A.C.A No.2022/06 4 assessed that the disability is 25%. We find absolutely no reason in the absence of any better evidence for the tribunal to reduce the extent of disability from 25% to 15%. We are satisfied that the challenge raised on both the above grounds deserves to be accepted. 5. The learned counsel for the appellant further contends that compensation awarded under the head of pain and suffering and loss of amenities are not adequate. We are unable to accept this contention. Considering the nature of the deprivations, we are satisfied that the quantum of compensation awarded under the head of pain and suffering and loss of amenities does not warrant interference. 6. The learned counsel for the insurance company contends that, at any rate, the tribunal erred in reckoning the multiplier to be 16 for persons of the age group 40-45. 15 is the multiplier as per the 2nd schedule to the M.V.Act for persons who have suffered permanent disability, contends the counsel. We accept that contention. 7. The above discussions lead us to the conclusion that the claimant/appellant is entitled to the following further amounts as compensation in addition to the amounts awarded by the tribunal. M.A.C.A No.2022/06 5 (i) Loss of earnings (Rs.3,000/- x 6) i.e. Rs.18,000/- minus Rs.10,800/- = Rs.7,200/- (ii) Reduction in earning capacity consequent to disability = Rs.3,000/- x 12 x 15 x 25/100 i.e Rs.1,35,000/- minus Rs.51,840/- = Rs.83,160/- Total = 90,360/- 8. In the result, a) This M.A.C.A is allowed in part. b) The appellant is found entitled to a further amount of Rs.90,360/- (Rupees ninety thousand three hundred and sixty only) in addition to the amounts awarded by the tribunal. c) Needless to say, the entire amount of compensation shall carry interest at the rates awarded by the tribunal from the date of the petition to the date of payment. d) All other directions of the tribunal are upheld. e) Appropriate further directions regarding deposit/release shall be issued by the tribunal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr M.A.C.A No.2022/06 6 M.A.C.A No.2022/06 7 M.A.C.A No.2022/06 8 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009