IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 MACA.No. 2464 of 2009() ----------------------- OPMV.1737/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT: PETITIONER ------------------------ SHAJI, MADATHILVELIYIL HOUSE, PULINCHUVADU BHAGAM, THANNEERMUKKAM PO, CHERTHALA, ALAPPUZHA DIST. BY ADV. SRI.VINOD KUMAR.C SRI.K.K.DHEERENDRAKRISHNAN RESPONDENTS: RESPONDENTS ------------------------------------ 1. PRASANTH L.O, KALLUMADAPPARAMPU HOUSE, KALLARA SOUTH, KOTTAYAM DIST. 2. OUSEPH ULAHANNAN, PUTHANADATHU MADATHIL, KALLARA, KOTTAYAM DIST. 3. THE NEW INDIA ASSURANCE CO.LTD, REP.BY ITS BRANCH MANAGER, ETTUMANOOR, KOTTAYAM DIST. ADV. SRI.PHILIP T.VARGHESE FOR R2 SRI.THOMAS T.VARGHESE FOR R2 SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- C.M.Application No.2900 OF 2009 & M.A.C.A.No. 2464 OF 2009 ----------------------------------------------------- DATED THIS THE 21st DAY OF JANUARY, 2010 O R D E R/J U D G M E N T Basant, J. This petition is to condone the delay of 99 days in filing an appeal. Claimant is the appellant. Challenge is against the quantum. Heard. We are satisfied that a lenient view can be taken and the delay can be condoned. Petition allowed. Delay condoned. M.A.C.A.NO.2464/09 2. Injured/claimant is the appellant. He claimed compensation for injuries suffered by him in a motor accident which took place on 6.3.2005. Type 3 open fracture of both bones of the right leg was suffered. Fractured tibia had protruded out. There were other external injuries also. He was an inpatient in the hospital for 31 days in two spells. The initial spell was from 6.3.2005. The latter spell on account of non-union of the fractured bones was in December, 2005. He had suffered permanent disability. The permanent disability was assessed by the Doctor in Exhibit A11 to be 17%. M.A.C.A.2464/09 -2- 3. The Tribunal on the basis of the evidence available before it came to the conclusion that the appellant is entitled for a total amount of Rs.1,22,919/- only as compensation. Though he had claimed that he is entitled for a higher amount , he had limited his claim to Rs.2.5 lakhs. The Tribunal awarded compensation under the following heads: 1. Loss of earning (for 5 months @ Rs.3000/- allowed) – Rs.15,000/- 2. Medical expenses(though claimed only Rs.10,000/- allowed the bill amount) - Rs.16,219/- 3. Transport to hospital - Rs. 2,000/- 4. Damage to clothing - Rs. 500/- 5. Extra nourishment - Rs. 1,000/- 6. Bystander expenses(He was admitted in the hospital for about 31 days hence allowed) - RS. 3,500/- 7. Future medical expenses(the wound on his leg still not fully healed and treatment is still continuing hence allowed) - Rs. 2,500/- 8. Pain and suffering - Rs.15,000/- 9. Compensation for permanent disability (3,000x12x17x10/100) - Rs.61,200/- 10. Compensation for loss of amenities and inconvenience, if any. - Rs. 6,000/- -------------------------- Total - Rs.1,22,919/- ========== M.A.C.A.2464/09 -3- The said amount was directed to be paid along with interest at the rate of 7.5% p.a. 4. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on various grounds. 5. First of all it is contended that the monthly income of the appellant reckoned by the Tribunal at Rs.3,000/- per mensem is grossly inadequate. He belonged to the Carpenter caste by birth. He was a Carpenter by avocation also. He placed before Court materials to show that he was not merely a Carpenter by birth and training, but he was gifted and versatile in painting, drawing, etc. He further attempted to establish this with the help of certificates of merit, etc. The learned counsel for the appellant submits that the accident had taken place in March, 2005 and it would be absolutely reasonable to assume that during that period even an ordinary Carpenter would get an income of Rs.6,000/- per mensem as claimed by the appellant. At any rate, the amount of Rs.3,000/- reckoned by the Tribunal is M.A.C.A.2464/09 -4- too low, contends the learned counsel. The learned counsel for the appellant points out that the presumption under the Second Schedule to the Motor Vehicles Act that even a non-earning person in 1994 can be assumed to get an amount of Rs.1,250/- may be borne in mind while speculating and assessing the probable income of the appellant. The appellant, of course, produced documents inconsistent with his own pleadings to prove his income and the Tribunal was obviously unimpressed by that improper attempt. In any view of the matter, we take note that the appellant was a skilled and versatile person engaged in carpentry and allied works, in 2005. Taking a realistic view of the entire inputs, we are of the opinion that a skilled Carpenter like the appellant can safely be assumed to earn an income of Rs.3,750/- per mensem at the relevant time. 6. The learned counsel for the appellant then contends that the Tribunal erred in awarding loss of earnings only for a period of five months when there was unimpeachable evidence to show that the fractured bones were not united and this had obliged the appellant to undergo admission as an inpatient and surgical procedures, in December, 2005. The learned counsel M.A.C.A.2464/09 -5- argues that in the wake of the unassailable evidence, at least nine months' involuntary unemployment and consequent loss of earnings must have been accepted and recognised. We find force in that contention. 7. The learned counsel for the appellant next contends that the percentage of reduction in earning capacity reckoned by the Tribunal at 10%, though Exhibit A11 certificate issued by the Doctor showed 17%, is incorrect and unacceptable. The learned counsel points out that in the absence of better inputs, the Tribunal should have accepted 17% itself as the extent of reduction in earning capacity. PW1 Doctor was examined also on this aspect, argues the learned counsel. 8. The Tribunals are not obliged to swallow the versions of medical men who assess the percentage of physical disability and import the same mechanically while ascertaining the percentage reduction in earning capacity. In the instant case, we find that the Tribunal had alertly applied itself and had wanted to verify the actual impairment in the physical faculties. Even assuming that Exhibit A11 cannot be assailed when it declares the percentage of physical disability to be 17%, we are M.A.C.A.2464/09 -6- of the opinion that considering the nature of employment of the appellant as a Carpenter, the disability suffered on his leg can safely be assumed to have resulted in reduction in earning capacity of 10%. We are not persuaded to interfere with that conclusion of the Tribunal. 9. The learned counsel for the appellant points out that the appellant was a young unmarried person aged 34 years. The physical disability certified in Exhibit A11 and actually found by the Tribunal on examination has certainly affected and impaired the quality of life which the appellant can aspire to live hereafter. That impairment has manifold reflections on his ability to enjoy life. He is a bachelor. It affects his prospects in marriage also. For all these loss of amenities and inconvenience, only a total amount of Rs.6,000/- has been awarded by the Tribunal and the learned counsel argues that this is grossly inadequate. We find merit in that contention. 10. The learned counsel for the appellant then contends that the quantum of compensation awarded under the head of pain and suffering - Rs.15,000/- is inadequate. The learned counsel points out that major fractures were suffered with tibia M.A.C.A.2464/09 -7- protruding, after the accident. He was an inpatient in two spells for a long period and a second spell of hospitalisation became necessary because of non-union of the fracture, about nine months after the accident. In these circumstances, appropriate reasonable and just amount has not been awarded under the head of pain and suffering also, contends the learned counsel. We are satisfied that the said grievance is also justified. 11. On the basis of the above discussions, we come to the conclusion that the appellant is entitled to the following further amounts by way of compensation, in addition to the amounts already awarded by the Tribunal. 1. Loss of earnings-Rs.3,750x9 =Rs.33,750 minus Rs.15,000 = Rs.18,750/- 2. Pain and suffering -Rs.20,000/- minus Rs.15,000 =Rs. 5,000/- 3. Loss of amenities - Rs.20,000- minus Rs. 6,000/- = Rs.14,000/- 4. Reduction in earning capacity (3750x12x17x10/100) = Rs.76,500/- minus Rs.61,200/- = Rs.15,300/- ------------------- Total = Rs.53,050/- ========= M.A.C.A.2464/09 -8- 12. In the result: (a) this appeal is allowed in part. (b) the appellant is found entitled to a further amount of Rs.53,050/- (Rupees fifty three thousand and fifty only) in addition to the amount awarded by the Tribunal. (c) Needless to say, the entire amount of compensation shall carry interest at the rate of 7.5% p.a. from the date of the petition to the date of payment. (d) All other directions of the Tribunal are upheld. The Tribunal shall issue revised directions regarding deposit/release. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn