IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 MACA.No. 1728 of 2005() ----------------------- OPMV.357/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA,WAYANAD .................... APPELLANT(S): APPELLANT/APPLICANT --------------------------------- V.RADHAKRISHNAN, S/O.PRABHAKARAN NAIR, AGED 38 YEARS, VADALAKA VEETTIL, RIPPON POST, MEPPADI, VYTHIRI TALUK. BY ADVS. SRI.GRASHIOUS KURIAKOSE SRI.PREM DOMINIC RESPONDENT(S)/RESPONDENTNO.2: --------------- THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, RAWTHER BUILDINGS, NEAR PINANGODE ROAD JUNCTION, MAIN ROAD, KALPETTA, WAYANAD. ADV. SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 1728 OF 2005 --------------------------------------------------------- Dated this the 13th day of March, 2009 JUDGMENT Basant, J. The claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.2,00,000/- as compensation for personal injuries suffered by him in an accident which occurred on 5.6.2002. He claimed to be a conductor aged 38 years earning an income of Rs.6,000/- per mensem. He had suffered compound fracture of right calcaneum. There was also avulsion and exposure of the heel pad. He was an inpatient for a period of 12 days. He had produced medical certificate to show that he had suffered disability to the extent of 5% and the consequent functional and occupational disability of 15%. 2. Before the Tribunal, the appellant himself was examined as PW.1. Exts.A1 to A7 were marked. The Tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant is entitled for a total compensation of Rs.41,250/- as per the details shown below: i. Loss of earning (1500x3) :Rs. 4,500/- M.A.C.A. NO.1728/2005 2 ii. Transportation charges :Rs. 250/- iii. Extra nourishment :Rs. 1,000/- iv. Bystander expenses :Rs. 1,000/- v. Medical expenses (against bills produced) :Rs. 9,500/- vi. Pain and suffering :Rs.15,000/- vii. Compensation for disability :Rs.10,000/- --------------- Total :Rs.41,250/- --------------- The said amount was directed to be paid along with interest at the rate of 6% per annum from the date of the petition. 3. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to raise against the impugned award, learned counsel for the appellant advances various contentions. 4. First of all, it is contended that the interest awarded at the rate of 6% per annum is not correct. Relying on precedents, it is contended that interest must have been awarded at least at the rate of 7.5% per annum. Secondly, it is contended that the monthly income of the appellant was reckoned only at Rs.1,500/- though there was evidence to indicate that he M.A.C.A. NO.1728/2005 3 was a conductor in a private bus. Counsel points out that even in 1994, the Parliament had permitted the drawal of a presumption of prudence as per the entry in the Second Schedule of the Motor Vehicles Act that the notional income of a non earning person can be assumed to be Rs.1,250/- per mensem. The monthly income reckoned by the Tribunal is perversely and painfully low, contends counsel. We agree with the learned counsel. Even in the absence of better evidence, we are satisfied that the monthly income of the appellant can safely be assumed as Rs.2,500/- The appellant will, therefore, be entitled to further compensation for loss of earning and earning capacity on that basis. 5. It is contended that no amount has been awarded for future treatment. It is further contended that loss of earning was reckoned only for a period of three months. The appellant was an inpatient for a period of 12 days. The Tribunal awarded compensation for loss of earning for three moths. There is no evidence indicating that the appellant was under treatment beyond the period of three months. Hence, we find no merit in the said contention. 6. The main plank of the challenge is that no amount has been awarded for reduction in earning capacity. The Tribunal was satisfied that M.A.C.A. NO.1728/2005 4 the appellant had suffered disability. The medical certificate produced by him shows 5% physical disability. The Tribunal adverted to this specifically and did not hold that the assessment of disability is unreasonable. But, surprisingly the Tribunal observed that the said disability can be ignored. We agree with the learned counsel for the appellant that the Tribunal has not approached the question in the proper perspective. Though there is a contention that 5% disability has resulted in reduction in earning capacity to the extent of 15%, we are not persuaded to agree with that contention. We are satisfied that the reduction in earning capacity can safely be reckoned to be equal to the percentage of reduction in physical ability. 5% can hence be safely reckoned as reduction in earning capacity. The appellant is shown to be aged 38 years. For a person aged between 35 to 40, the multiplier is 16. The appellant will consequently be entitled to an amount of Rs.24,000/- (2500x12x16x5/100) under this head. 7. An amount of Rs.10,000/- has been awarded as compensation for disability. We reckon that amount as compensation payable for loss of amenities. The 38 year old appellant will have to endure this disability for the rest of his life. We are satisfied that considering the nature of the disability, Rs.10,000/- already awarded under the head disability can be credited to the loss under the head loss of amenities. We are not satisfied M.A.C.A. NO.1728/2005 5 that the amount awarded under any other head deserves or warrants interference. 8. The above discussions lead us to the conclusion that the appellant is entitled to the following further amounts in addition to the amounts already awarded by the Tribunal: i. Loss of earning (2500x3 minus 4500) :Rs. 3,000/- ii. Reduction in earning capacity (no amount has been awarded) :Rs.24,000/- --------------- Total :Rs.27,000/- --------------- We further direct that the entire amount of compensation shall carry interest at the rate of 7.5% per annum from the date of the petition till the date of payment. 9. This appeal is allowed in part to the above extent. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.1728/2005 6 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.1728/2005 JUDGMENT 13th March, 2009