IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 MACA.No. 48 of 2007() --------------------- OPMV.916/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER ------------------------ JAYAN, S/O. KRISHNAN NAIR, VADAKKATH HOUSE, VADAKKANCHERRY, P.O.KUMARANELLOOR. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------------------ 1. M.H.MOBIN, S/O. HUSSAIN, NAPPAKULU, KODAGU DISTRICT, MADIKERI. *(DELETED) 2. NEELAMMA GANAPATHY, NAPPOKKU P.O., KODAGU DISTRICT, MADIKERI. *(DELETED) 3. THE UNITED INDIA INSURANCE CO. LTD., KOORG, KODAGU P.O., VIRAJPET VIA. 4. M.K.K.MOIDEEN, S/O. HUSSAIN, MULLANMADAKKAL HOUSE, KILIANTHARA P.O., IRITTY. 5. P.K.SHAMEENA, W/O. ABBAS, UMARAS, KILIANTHARA P.O. 6. UNITED INDIA INSURANCE CO. LTD., KANNUR. *(THE NAMES OF RESPONDENTS 1 AND 2 ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 19.10.2009 IN I.A.No.2945/09) ADV. SRI.P.MURALEEDHARAN FOR R3 & R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- M.A.C.A.No.48 OF 2007 ----------------------------------------------------- DATED THIS THE 12th DAY OF JANUARY, 2010 J U D G M E N T Basant, J. Claimant/injured is the appellant. He claimed compensation for the loss suffered by him consequent to the injuries sustained in a road traffic accident which took place on 26.1.1999. He had suffered crush injury to the right arm. Biceps muscle was crushed. He was an in-patient for a period of 22 days. He claimed that his daily income was Rs.150/-. According to him, he had suffered permanent disability to the tune of 4%. The Tribunal on an anxious consideration of all the materials available awarded a total amount of Rs.25,300/- as compensation as per the details given below. 1. Loss of earning : Rs.6,000/- 2. Transportation expenses : Rs.1,500/- 3. Medical expense : Rs.5,000/- 4. Bystander's expense : Rs.3,300/- 5. Extra nourishment : Rs.1,500/- 6. Pain and sufferings : Rs.8,000/- ---------------- Rs.25,300/= ======= M.A.C.A.NO.48/2007 -2- The said amount was directed to be paid along with interest and costs as directed. 2. 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, the learned counsel for the appellant assails the impugned award on two specific grounds. The learned counsel for the appellant submits that the monthly income reckoned at Rs.2,000/- to arrive at the quantum of loss of earnings (3 x Rs.2000=Rs.6,000/-) is too low. He further contends that in spite of production of Exhibit A5 disability certificate, the Tribunal had not awarded any amount under the heads of reduction in earning capacity and loss of amenities. The impugned award is liable to be interfered with on these grounds, contends the learned counsel. 3. We have indications to suggest that the appellant was a sand worker. The only meager indication is available from the FIR which shows that the accident occurred when he was travelling for the purpose of transportation of sand in a lorry. Even in the absence of any better evidence the Tribunal reckoned the monthly income to be Rs.2,000/- and further M.A.C.A.NO.48/2007 -3- assumed that involuntary unemployment must have extended to a period of three months. We take note of the enabling presumption of prudence under the 2nd Schedule to the Motor Vehicles Act, which was introduced in 1994 that even a non-earning person can be assumed to earn an income of Rs.1,250/- per mensem. Evidently, it is assisted by the said presumption of prudence that the Tribunal sailed to the conclusion that even in the absence of better evidence in 1999, claimant can be assumed to be earning an income of Rs.2,000/- per mensem. We are not persuaded to hold that there is any error warranting appellate interference in the said finding regarding the monthly income or the period of involuntary non- employment. 4. The learned counsel for the appellant submits that the Tribunal should have compassionately and realistically taken note of the disability that must have resulted. He contends that Exhibit A5 even though not formally proved by examination of the Doctor, there are clinching indications to suggest that he had suffered disability. Crush injury to the biceps is the injury suffered. 22 days' hospitalisation was necessary. The Doctor, in M.A.C.A.NO.48/2007 -4- Exhibit A5 certificate, has stated that there was partial severing of the bicep muscle bulk with fibrosis and resultant weakness of the right upper limb. It was after adverting to this relevant data that the Doctor came to the conclusion that there was permanent disability to the tune of 4%. Even in the absence of crisp, cogent and authentic evidence, we find merit in the contention of the learned counsel for the appellant that it was safe to sail to the conclusion that some disability has been suffered on account of the incident and the consequent injury suffered. 5. We take note of the nature of unskilled manual employment of the appellant. We are satisfied that the said disability must have reduced the earning capacity. We also take note that amenities and enjoyment of life must have been impaired because of the disability suffered, though meager. We are satisfied that a composite amount of Rs.7,680/- (Rs.2,000 x 12 x16 x 2/100) can be awarded as compensation under this composite head of compensation on account of disability (including loss of amenities and reduction in earning capacity). Even in the absence of better evidence, we find it safe to fix such M.A.C.A.NO.48/2007 -5- amount assuming the disability to be around 2%. 6. The challenge in this appeal succeeds to the above extent. No other contentions are raised. 7. In the result: (a) this appeal is allowed in part. (b) It is held that the appellant is entitled to a further amount of Rs.7,680/- (Rupees Seven Thousand Six Hundred and Eighty only) as per the details shown above. Needless to say, this amount of Rs.7,680/- shall carry interest at the rate of Rs.7% per annum from the date of the petition as already directed in the award. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn