IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 MACA.No. 1958 of 2005() ----------------------- OPMV.1535/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- C.V.MOOSAN, S/O.ABDUL RAHIMAN.K. ZEENATH MANZI, PAYANGAD, KANNUR DISTRICT. BY ADV. SRI.R.PARTHASARATHY SMT.S.LAKSHMY RESPONDENT(S): RESPONDENTS. --------------------------- 1. PILATHODAN MUHAMMAD KUNHI, S/O.IBRAHIM NEAR KALLIAKKAL MOSQUE, ARALLI, PAPPINISSERY, KANNUR. 2. C.P.MUHAMMED KUNHI, KOHINOOR INDUSTRIES, KAKKAD, KANNUR. 3. THE NEW INDIA ASSURANCE CO.LTD., KANNUR. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & N.K. BALAKRISHNAN, JJ. ------------------------------------------------- M.A.C.A. No. 1958 of 2005-G ------------------------------------------------- Dated this the 8th day of July, 2011 JUDGMENT Basant,J. The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a road traffic accident which took place on 26/5/2000. He claimed an amount of Rs.6 lakhs as compensation. 2. The Tribunal came to the conclusion that the appellant/ claimant is entitled only for an amount of Rs.3,06,000/- as per the details given below: “1. Loss of earning - Rs.12,000/- 2. Transportation expenses - 4,000/- 3. Medical expenses including bills - 78,000/- 4. Bystanders expense - 5,850/- 5. Extra nourishments - 6,000/- 6. Pain and sufferings - 20,000/- 7. Loss of amenities - 10,000/- -------------- Toal - Rs.1,35,850/- Rounded to - Rs.1,36,000/- ========” 3. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The learned M.A.C.A. No. 1958 of 2005 -: 2 :- counsel for the appellant assails the impugned award on the short ground that the quantum of compensation awarded is not adequate. 4. The learned counsel was requested to explain. The learned counsel assails the impugned award on the following planks: (i) Monthly income reckoned by the Tribunal to compute loss of earning at Rs.2,000/- per mensem is grossly inadequate. (ii) The amount awarded under the head of pain and suffering - Rs.20,000/- is unrealistic considering the nature of the injuries and the period of treatment. (iii) The amount awarded under the head of loss of amenities - at Rs.10,000/- is grossly inadequate considering the medical evidence that 10% disability has been suffered. 5. We have considered all these contentions. It is not seriously disputed that the appellant was employed abroad prior to the accident. Subsequently also he continues to be employed abroad. The Tribunal has accepted that he must have been involuntarily unemployed on account of the accident for a period of six moths. The only challenge is about the rate of monthly income. It is certainly for the appellant to adduce sufficient evidence to show his monthly income. No evidence was forthcoming. In these circumstances, the Tribunal appears to M.A.C.A. No. 1958 of 2005 -: 3 :- have felt that only Rs.2,000/- per mensem can be reckoned as monthly income. Though there is a contention that the appellant had lost his employment because of the injury/ treatment, it is conceded, in the course of trial, that the appellant continues to be employed abroad. The short question is whether the Tribunal, even in the absence of any better evidence, should have reckoned a higher amount as monthly income to compute the loss of earnings. 6. Having heard both counsel, we are persuaded to agree that in the light of the undisputed stand that the appellant was employed abroad even prior to and subsequent to the accidence, his monthly income can safely be reckoned as Rs.3,500/-. 7. So far as the claim under the head of pain and suffering is concerned, we have indisputable evidence that the appellant had suffered fracture of skull bone (parietal bone), brain concussion, fracture of jaw bone, fracture of thigh bone (femur) and fracture of collar bone (clavicle). We have further evidence to show that he was put in plaster for a period of about 4 months. He was an inpatient for a period from 26/5/00 to 22/6/00 in two hospitals. Initial admission was at the Medical College Hospital, Pariyaram; subsequently he was shifted to the Unity Health Complex at Mangalore, where he continued as an inpatient from 27/5/00 to 22/6/00. Implant was placed for the M.A.C.A. No. 1958 of 2005 -: 4 :- femur bone. The same had to be removed for which he was an inpatient from 21/10/02 to 1/11/02 again at the Unity Health Complex, Managalore. 8. The Tribunal has already awarded Rs.20,000/- as compensation for pain and suffering. Taking the totality of inputs into account, we reckon that an amount of Rs.5,000/- more can be awarded under that head. 9. Coming to the head of physical disability, according to the appellant, he has suffered 10% disability. This argument is built on Ext.A9 disability certificate. It is not issued by a Medical Board. The Doctor who issued the certificate has not been examined as a witness. The relevant portion of Ext.A9 disability certificate is extracted below: “On examination today, the fractures have united but he has pain and tenderness over the left hip and knee joint and slight restrictions of movements (flexion) by 10 degrees and also there is shortening of limb by 1 cm. The functional and structural disabilities are due to injuries and are permanent in nature. This can be assessed to an extent of 10% of the whole body.” 10. All the indications suggest that the fractures had united M.A.C.A. No. 1958 of 2005 -: 5 :- well. Shortening of limb by 1 cm. is indicated. The Tribunal was evidently not satisfied with the conduct of the appellant thrusting Ext.A9 into court without proper legal proof. At any rate, we are satisfied that the Tribunal is correct in coming to the conclusion that the alleged physical disability has not interfered with the earning capacity of the appellant. But it is reasonable to assume that the quality of enjoyment of life by the appellant must have been affected and impaired by the alleged disability suffered. The Tribunal has awarded an amount of Rs.10,000/- under this head. But taking note of Ext.A9 and the evidence tendered by P.W.1, we feel that an amount of Rs.20,000/- can safely be awarded under the head of loss of amenities. 11. We are not persuaded to agree that the amounts awarded under any other heads warrant interference/ modification. 12. The above discussions lead us to the conclusion that the appellant is entitled for the following further amounts as compensation in addition to the amounts awarded by the Tribunal. i) Loss of earning :Rs.9,000.00 (3,500 X 6 minus 12,000) ii) Pain and suffering :Rs.5,000.00 (25,000 minus 20,000) M.A.C.A. No. 1958 of 2005 -: 6 :- iii) Loss of amenities :Rs.10,000.00 (20,000 minus 10,000) --------------------- Total :Rs.24,000.00 ======== 13. The appeal succeeds only to the above extent. Needless to say, this amount shall also carry interest from the date of the petition to the date of payment at the rate directed by the Tribunal. 14. In the result: a) This appeal is allowed in part. b) The appellant is found entitled to a further amount of Rs.24,000/- (Rupees Twenty four thousand only) in addition to the amounts awarded by the Tribunal as shown above. c) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- N.K. BALAKRISHNAN (Judge) Nan/ //true copy// P.S. to Judge