IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 MACA.No. 1359 of 2011(C) ----------------------- O.P.(MV) NO.2734/2004 OF M.A.C.T, THRISSUR ------------------- APPELLANT : PETITIONER ------------------------ GEORGE @ VARGHESE,S/O.CHAKKORU,AGED 66 YEARS,THEKKANATH HOUSE,PERMANANGALAM VILLAGE, DESOM,THRISSUR TALUK. BY ADV. SRI.C.HARIKUMAR ASHA.V.V RESPONDENTS : RESPONDENTS --------------- 1. MR.SIRAJUIDHEEN,S/O.ABDULLA,'SUNAS', PUNNASSERY,NARIKUNNI,KAKKUR,KOZHIKODE 673 619. 2. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE II,PRAMOD BUILDINGS, CHEROOTY ROAD, CALICUT 673 001. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1359 of 2011-C ***************************** Dated this the 23rd day of September, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered in a motor accident which took place on 14.08.2004. He had suffered fracture of the patella and nasal bone. During hospitalisation fracture of cervical spine and sub conjunctival hemorrhage was also diagonised. He was treated by tension band wiring. He had undergone treatment as an inpatient for a total span of 51 days in 4 spells. Partial patellectomy had to be done. He had allegedly suffered permanent disability. The whole body disability was assessed by an Associate Professor of Orthopaedics at Medical College Hospital, Thrissur at 18%. Mal union of patella, wasting and loss of grade I power, secondary osteo arthritis of left knee with instability, mal union of nasal bone, nerve palsy and sequlae of head injury were the instances of disability noted by the doctor in Ext.A8 disability certificate. Against a total claim limited to Rs.3 lakhs, the Tribunal awarded only an amount of Rs.83,467/- as per the details given in para.16- page 7 of the impugned M.A.C.A No.1359/11 2 award which we extract below: Sl.No. Head of claim Amount awarded 1 Loss of earning (total) Rs.10,000.00 (2500X4) 2 Medical and miscellaneous expense Rs.23,467.00 3 Bystander expenses Rs. 3,000.00 4 Transportation expense Rs. 1,500.00 5 Extra nourishment Rs. 2,000.00 6 Damages to clothing etc. Rs. 500.00 7 Pain and suffering Rs.25,000.00 8 Disability Rs.18,000.00 (2500X12X7X12/100) Total Rs.83,467.00 2. The 2nd respondent insurance company was made entirely liable to satisfy the impugned award. We have heard the learned counsel for the appellant and the learned insurance company Advocate George Cherian. Challenge is raised only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. First of all it is contended that the appellant, aged 63 years, was a taxi driver, holding a valid driving licence and badge. The Tribunal erred in reckoning Rs.2,500/- as the M.A.C.A No.1359/11 3 monthly income, points out the learned counsel. We find merit in that contention. We take note of the presumption of prudence under clause 6 of the Second Schedule. We also take note of the decisions in Lata Wadhwa V. State of Bihar [AIR 2001 SC 3218] and Laxmi Devi & Ors. V. Mohammad Tabbar & Anr. [2008 ACJ 1488], wherein the presumption has been drawn that even a non earning home maker as also a skilled manual labourer even in the absence of any better evidence, can be assumed to earn an income of Rs.3,000/- per mensem. We are satisfied, in the facts and circumstances of the case, that Rs.3,500/- can safely be reckoned as the monthly income of the appellant. 4. Loss of earnings has been awarded only for a period of 4 months. We have evidence to show that at the end of 4 months, he was still undergoing treatment. He was discharged from the hospital only on 23.12.2004. We are satisfied, in these circumstances, that the appellant is entitled for loss of earnings for a period of 7 months. 5. The learned counsel for the appellant then contends that only a total amount of Rs.5,000/- (3,000 plus 2,000) has been awarded under the head of bystander's expenses and extra M.A.C.A No.1359/11 4 nourishment. He was an inpatient for a period of 51 days. We are satisfied that @ Rs.100/- per day under each of the two heads can be awarded as compensation. 6. The learned counsel for the appellant then contends that the compensation for loss of earning power granted adopting the multiplier-multiplicand method is inadequate. 7 has rightly been taken as the multiplier as the appellant is found to be aged between 60 and 65 on the date of the accident. 18% was certified to be the physical disability. The Tribunal accepted only 12 as the reduction in earning power. It is true that the doctor, who issued Ext.A8, was not examined. But we do take note of the circumstance that partial patellectomy was done and the appellant, aged about 63 years, was engaged as a driver. We find merit in the contention that a higher extent of reduction in earning capacity ought to have been accepted. Even in the absence of better evidence considering the nature of disability and nature of employment of the appellant, we are satisfied that 15 can be reckoned as the extent of reduction in earning capacity. 7. The learned counsel for the appellant finally contends that no amount has been awarded as compensation under the M.A.C.A No.1359/11 5 head of loss of amenities. The learned counsel for the insurance company points out that an amount of Rs.25,000/- has already been awarded under the head of pain and suffering. We are satisfied that a further amount of Rs.15,000/- in addition to the amount awarded under the head of pain and suffering can be awarded under the head of loss of amenities. 8. We are not persuaded to agree that the amount awarded under any other head deserves or warrants appellate interference. 9. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.60,800/- as shown below in addition to the amounts already awarded by the Tribunal under the impugned award. i) Loss of earnings : Rs.14,500.00 (3,500X7 minus 10,000/-) ii) Bystander's expenses and extra nourishment : Rs. 5,200.00 (51X200=10,200 minus 5,000) iii) Reduction in earning capacity : Rs.26,100.00 (3,500 X 12 X 7 X 15/100 = 44,100 minus 18,000) M.A.C.A No.1359/11 6 vi) Loss of amenities (no amount awarded separately by the Tribunal): Rs.15,000.00 (in addition to the amount awarded under the head of pain and suffering) ------------------- Total : Rs.60,800.00 ======== 10. 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.60,800/- (Rupees Sixty thousand eight hundred only) in addition to the amount already awarded by the Tribunal under the impugned award; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/