IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 MACA.No. 1318 of 2006 ----------------------- ( OPMV.1874/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY ) .................... APPELLANT/PETITIONER ---------------------------------- K.V.M.PREMAN, S/O.ANANDAN, VARAYATHIL HOUSE, P.O.POOKODE, VIA. PATHAYAKUNNU, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT/RESPONDENT NO.3: ------------------------------------------------------- UNITED INDIA INSURANCE CO. LTD., TELLICHERRY BRANCH OFFICE. ADV. SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & P.R. RAMACHANDRA MENON, JJ. ........................................................................ M.A.C.A. No. 1318 OF 2006 ......................................................................... Dated this the 12th February , 2009 J U D G M E N T Basant, J. : The claimant before the Tribunal is the appellant before us. He claimed an amount of Rs. 1,60,000/- as compensation for the personal injuries suffered by him in a motor accident. By the impugned award, the Tribunal awarded only an amount of Rs. 49,750/- as compensation, as per the details precisely shown in paragraph No.10 of the award. 2. The claimant is a Government employee. He was drawing a monthly salary of Rs. 2722/- at the relevant time. He suffered fracture of the right elbow. For 19 days he was an inpatient in the hospital. Two surgeries had to be undergone. He had allegedly suffered permanent disability also. It is alleged that he has suffered permanent physical disability to the extent of 40%. M.A.C.A. No. 1318 OF 2006 2 3. The claimant/appellant examined himself as P.W.1. Exts. A1 to A6 were marked. The Tribunal was not prepared to accept that 40% disability has been suffered by the claimant. A certificate was issued by the medical board without a reference by the Tribunal to the medical board. The Tribunal was not satisfied that 40% disability could have been suffered as a result of the fracture of elbow, as seen from the discharge summary. The Tribunal, in these circumstances, reckoned only 5% as the physical disability admissible. On that basis, adopting the multiplier- multiplicand method, the loss of earning capacity was fixed at Rs. 26,131/-. 4. The appellant claims to be aggrieved by the quantum fixed. Called upon to explain the nature of the specific challenge against the award, the learned counsel for the claimant/appellant submits that the Tribunal has erred grossly in not accepting the disability certificate to conclude that 40% disability has been suffered by the claimant/appellant. We are in complete agreement with the Tribunal. Considering the nature of the injuries as seen from the earlier medical records, the burden was M.A.C.A. No. 1318 OF 2006 3 heavy on the claimant/appellant to prove that he had suffered disability of 40% on account of such injuries suffered in the accident. No satisfactory proof of the disability certificate was even attempted and no reasons are forthcoming to explain such a crucial omission. In the circumstances of the case, we are satisfied that the Tribunal has not committed any error in reckoning the disability at 5%. On the materials available before the Tribunal, a better conclusion in favour of the appellant appears to us to be impossible. We also take note of the fact that though the appellant has not suffered any reduction in earning capacity, the Tribunal had adopted the multiplier- multiplicand method to assess the loss of earning capacity. Even assuming that the appellant does not immediately suffer any loss of earning consequent to the disability, considering the nature of the alleged disability and the nature of the employment of the appellant, he would certainly be forced to strain himself more to produce the same out-come of work as he was doing hitherto after suffering that disability. The impairment of the prospects of his past retirement employment must also be taken note of. M.A.C.A. No. 1318 OF 2006 4 Taking all these into consideration, we are persuaded to agree that the amount of Rs. 26,131/- awarded by the Tribunal towards loss of earning capacity is fair, just and reasonable and does not, at any rate, require upward modification. 5. Learned counsel for the appellant raised two more grounds. It is submitted that considering the nature of the injuries , period of hospitalisation and procedures undergone, the amount of Rs. 6,000/- awarded under the head-'pain and suffering', is inadequate. We are persuaded to agree with that contention. We are satisfied that an amount of Rs.10,000/- (Rupees ten thousand only) in all, i.e., Rs.4,000/- (Rupees four thousand only) more can safely be awarded under the head-'pain and suffering'. 6. Learned counsel for the appellant further points out that the 37 year old appellant, who had suffered disability, which the Tribunal has accepted, must certainly be held to have suffered reduction/impairment in the quality of life which he can aspire to enjoy. The disability suffered must certainly have brought down the quality of enjoyment of life. This aspect has not been taken M.A.C.A. No. 1318 OF 2006 5 into consideration by the Tribunal and no amount has been awarded under the head-'loss of amenities of life', contends the learned counsel. We are satisfied that the said omission deserves to be corrected in this appeal. We are satisfied that the award of an amount of Rs.10,000/- (Rupees ten thousand only) under this head shall also meet the ends of justice. 7. The above discussions lead us to the conclusion that the appellant is entitled for a further amount of Rs.14,000/- (Rupees fourteen thousand only) in all, as per the details shown above, in addition to the amount already awarded by the Tribunal. 8. The Tribunal has awarded interest at differential rates for different periods. We are satisfied that the said awarding of interest at different rates for different periods is justified in the facts and circumstances of the case. But the award of only 6% interest per annum for the period from 28.01.2005 till the date of realisation does not appear to us to be justified. We accept the contention of the learned counsel that interest at least at the rate of 7.5% per annum must have been awarded for the period from 28.01.2005 till the date of realisation. M.A.C.A. No. 1318 OF 2006 6 In the result: (i) The appeal is allowed in part to the above extent. (ii) It is held that the appellant is entitled for a further amount of Rs.14,000/- (Rupees fourteen thousand only). (iii) It is further directed that interest shall be payable on the entire amount till 21.06.1996 at the rates already directed by the Tribunal and that for the period from 28.01.2005, the interest shall be paid on the whole amount at the rate of 7.5% per annum. R. BASANT, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk