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. 2348 of 2009() ----------------------- OPMV.1393/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S)/PETITIONER :- --------------------------------------------- MR.NARAYANAN K, AGED 41 YEARS, 24,SYDOJI STREET, TRIPLICANE, CHENNAI, TAMIL NADU. BY ADV. SRI.T.A.SOMAN RESPONDENT(S)/RESPONDENTS :- -------------------------------------------------- 1. SHAJI, AGED 28 YEARS, S/O.GOVINDAN, VELLOORKUDY HOUSE, THRIKARIYOOR VILLAGE, NAKANCHERRY, KOTHAMANGALAM,. 2. P.M.POULOSE, S/O.MATHAI, PORATHYVAYALIL HOUSE, KEEZHILLAM. 3. NEW INDIA ASSURANCE CO.LTD, BY ITS BRANCH MANAGER, BRANCH OFFICE AT ST.JOSEPH'S BUILDINGS, A.M.ROAD, PERUMBAVOOR. 4. MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM. ADV.SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 SRI.S.VIDYASAGAR FOR R2 SRI.V.V.NANDAGOPAL NAMBIAR, SC FOR R4 SRI.VIJU THOMAS FOR R3 SMT.MEENA JOHN.M. 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 :- jvt R. BASANT & N.K.BALAKRISHNAN, JJ. ------------------------------------ M.A.C.A. No.2348 of 2009 ------------------------------------ Dated this the 8th day of July 2011 J U D G M E N T Basant, J. Claimant is the appellant. He claims compensation for loss suffered by him on account of personal injuries which he suffered in a motor accident that took place on 1.12.2001. Against the claim of `16,63,000/- the Tribunal awarded an amount of `5,17,000/- as per the details shown below :- Loss of earnings (12 x 2000) - Rs. 24,000/- Treatment expenses - Rs.2,24,150/- Transportation expenses - Rs. 5,000/- Pain and suffering - Rs. 40,000/- Loss of amenities - Rs. 30,000/- Discomfort and disfiguration - Rs. 20,000/- Future treatment expenses - Rs. 10,000/- Damage to clothings - Rs. 250/- Attendant's charges - Rs. 5,000/- Extra nourishment - Rs. 5,000/- Disability (2000 x 12 x 16 x 40/100) - Rs.1,53,600/- --------------------- Total - Rs.5,17,000/- M.A.C.A. No.2348 of 2009 -: 2 :- 2. The claimant claims to be aggrieved by the quantum of compensation awarded. Called upon to explain the nature of challenge that appellant wants to mount against the impugned award, the learned counsel for the appellant submits that the appellant is aggrieved against the quantum of monthly earning reckoned by the Tribunal. Only an amount of `2,000/- was reckoned as monthly income. This is accordingly unjustifiable and perversely insufficient. It is claimed that as a graduate employed as a Sales Executive by a company at Chennai, of which PW1 is the Manager who in turn had issued Ext.A15 to confirm, the appellant was earning a monthly income of `15,000/- at the time of the accident. The Tribunal ignored the evidence of PW1 and Ext.A15 completely and drew a presumption that the appellant must have been earning a monthly income of `2,000/- per mensum. This Court may please find that the Tribunal has erred in this context. 3. It is submitted that the said inadequacy has M.A.C.A. No.2348 of 2009 -: 3 :- reflected on the loss of earnings awarded at `24,000/- as also the loss of earning capacity which described as disability in the tabular column above. These inadequacies may be rectified and the compensation amount under these heads may be enhanced, submits the learned counsel for the appellant. 4. The learned counsel then contends that treatment expenses have been awarded only at `2,24,150/- against the bills submitted for a higher amount. The Tribunal had adverted to these aspects in detail and had come to the conclusion that the bills for an amount of `1,56,800/- which allegedly relates to physiotherapy, issued by a private centre cannot be accepted. Details are given by the Tribunal in paragraph 10 of the award as to why the Tribunal is unable to take into consideration for said bills for `1,56,800/- while the Tribunal accepted all other bills produced by the appellant. The learned counsel for the appellant submits that it is evident that the appellant must M.A.C.A. No.2348 of 2009 -: 4 :- have undergone physiotherapy. It was not proper to pick holes in the bills produced by the appellant, submits counsel for the appellant. Learned counsel for the respondents on the contrary contends that amounts awarded under the various other heads are excessive and at any rate the Tribunal has awarded compensation which must be accepted as fair, just and reasonable. No further amount deserves to be awarded, it is argued. 5. The injuries suffered were serious. The right arm of the appellant has been tendered practically useless. It resulted in disfigurement also. The appellant was aged 39 years. The medical board had assessed the disability caused by the appellant at 40%. The same has been accepted by the Tribunal also to ascertain quantum of compensation payable for reduction of earning capacity. The Tribunal had accepted 40% as the disability as well as reduction of earning capacity and it is thus that the compensation for reduction of earning capacity was M.A.C.A. No.2348 of 2009 -: 5 :- calculated. There can be no doubt that the injury suffered by the appellant was serious. He has been forced to undergo long period of treatment. Loss of amenities, disfiguration etc. have resulted. We are unable to agree that the Tribunal has awarded more than reasonable amount under the other heads. However, we feel that all the contentions of the learned counsel for the appellant that the amounts awarded under the head of loss of earnings and loss of earning capacity are inadequate, deserves serious consideration. 6. The appellant, it is asserted is a graduate but no documents are produced to prove his educational qualification. About the employment we get indication that he is based at Chennai and need to come to Kerala in connection with his employment. We are gathering relevant inputs so that even if we ignore Ext.A15 salary certificate, reasonable and fair conclusion about the total income of the appellant can be reached by us. We do also agree with the M.A.C.A. No.2348 of 2009 -: 6 :- learned Tribunal that Ext.A15 does not inspire confidence. Read along with evidence of PW1 who had admitted that the appellant's name was not borne on the registers of the company, Ext.A15 salary certificate were rejected by the Tribunal. This cause does appear to us to be reasonable. At the same time, we are unable to accept that such an employee like the appellant (as the indications reveal) would get only an amount of `2,000/- per mensum. We have no hesitation to agree that the monthly income of the appellant may be higher than `2,000/- but we are unable to get any acceptable indication to precisely ascertain the quantum of monthly income in this case. Thus, we have to say the appellant/claimant did not produce sufficient evidence before the Tribunal to show his monthly income. But we cannot ignore the primary mandate under Sec.166 of the M.V.Act that just and reasonable compensation must be made available to the victim. We are convinced that the amount of `2,000/- reckoned by the Tribunal is not adequate M.A.C.A. No.2348 of 2009 -: 7 :- or satisfactory. We are not convinced that the assertions of PW1 on oath and in Ext.A15 that the monthly salary is `15,000/- can be accepted. After having tendered our anxious consideration to all the relevant aspects, we are of the opinion that in the absence of better evidence made available to the Tribunal we would be justified in reckoning `5,000/- as the monthly income of the appellant. In coming to this conclusion, we have borne in mind the principle that the burden is heavily on the appellant to make satisfactory evidence available. In respect of the claim for compensation payable to the appellant, we are of the opinion that the Tribunal and this Court must make every endeavor to ensure that just and reasonable compensation is paid. In these circumstances, we come to the conclusion that `5,000/- can safely be reckoned as the monthly income of the appellant at the time of the accident. 7. A contention is raised that 40% physical disability in the facts and circumstances of this case must be, M.A.C.A. No.2348 of 2009 -: 8 :- assumed to result in a higher percentage of reduction of earning capacity. But we note that the appellant is not one whose work involves primarily the use of the said hand. This would have reflected on the earning capacity but at the same time we are satisfied that the reckoning of the percentage of physical disability. Percentage of reduction of earning capacity at 40% does appear to be fair and reasonable. We are not hence persuaded to agree on a higher percentage of reduction in earning capacity. 8. The above discussions persuade us to conclude that the appellant is entitled to the following further amounts by way of compensation in addition to the amounts awarded by the Tribunal. 1. Loss of earnings - Rs. 36,000/- (5,000 x 12 – 24,000) 2. Reduction in earning capacity (described as disability in the tabular column above) - Rs.2,30,400/- (5,000 x 12 x 16 x 40/100 – 1,53,600/-) ----------------------- Total - Rs.2,66,400/- ========= M.A.C.A. No.2348 of 2009 -: 9 :- We find it absolutely safe to direct payment of the said further amount in addition to the amount already awarded by the Tribunal. 9. In the result :- (A) This appeal is allowed in part. (B) The appellant is found entitled to a further amount of Rs.2,66,400/- (Rupees Two Lakhs Sixty Six Thousand and Four Hundred only) in addition to the amount already awarded by the Tribunal. (C) We clarify that interest shall be paid on the entire amount of compensation as directed by the Tribunal. (D) All other directions of the Tribunal are upheld. R. BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. Jvt