IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 MACA.No. 1102 of 2006(F) ----------------------- OPMV.1418/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): APPELLANT IN MACA- PETITIONER IN M.V.(O.P.) --------------------------------------------------------- RAMACHANDRAN PILLAI, R.R.MANDIRAM, CHERUMOODU, VELLIMON P.O., PERINADU VILLAGE, KUNDARA, KOLLAM. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON SRI.R.SURAJ KUMAR RESPONDENT(S): IN MACA-RESPONDENTS IN O.P.(M.V.) ------------------------------------------------ 1. MADHU, S/O. VELAYUDHAN, KOCHILAVAKKADU, THEKKUMPURAM, PUTHOOR. 2. SANTHOSH KUMAR, S/O. NADARAJA PILLAI, MUKALUVILA KIZHAKKATHIL, VELLIMON P.O., KUNDARA. 3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD, CHINNAKKADA, KOLLAM. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.1102 of 2006 ------------------------------------- Dated this the 26th day of March, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. He claimed compensation for personal injuries suffered by him in an accident which occurred on 08.07.1999. He claimed to be a marketing executive employed by Divine Pharmaceuticals. According to him his monthly salary was Rs.5,000/-. He suffered fracture of the bones of the left lower leg. There was avulsion injury on the scalp. He continued as an inpatient for a period of about 30 days in the hospital. He was referred later to the Medical College Hospital. He underwent treatment as an outpatient at the Medical College Hospital, Trivandrum. Long leg cast was applied on 06.10.99 for a period of 6 weeks. That was removed on 22.01.2000. But cast was applied again. Same was removed only on 10.01.00. He allegedly had suffered permanent partial disability on account of the accident which was assessed by a doctor of the Medical College who issued Ext.A7 disability certificate as 13%. M.A.C.A No.1102 of 2006 2 2. Before the Tribunal the claimant examined himself as PW1. He produced Exts.A1 to A14. The Tribunal on an anxious consideration of all the relevant inputs proceeded to pass the impugned award directing payment of an amount of Rs.55,920/- (rounded off to Rs.56,000/-) along with interest @ 9% per annum. The amounts are awarded under the following heads: i) Loss of earnings (1700 X 4) : Rs.6,800/- ii) Transport to hospital : Rs.2,500/- iii) Bystander's expenses & extra nourishment(total) : Rs.3,000/- iv) Medical expenses : Rs.4,900/- v) Pain and suffering : Rs.20,000/- vi) Reduction in earning capacity (1,500 X 12 X 13 X 8/100): Rs.18,720/- ................... Total : Rs.55,920/- .................. (rounded off to Rs.56,000/0) 3. The appellant claims to be aggrieved by the impugned award. What is the reason ? 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 raises various contentions. M.A.C.A No.1102 of 2006 3 4. First of all it is contended that the Tribunal erred grossly in reckoning the monthly income at Rs.1,700/- only. According to the appellant, his monthly income was Rs.5,000/-. At any rate, the certificate issued by his employer shows that his monthly salary was Rs.2,000/-. The accident had taken place in 1999 and from 1994, the second schedule of the Motor Vehicles Act permits the drawal of a presumption of prudence that even a non earning person can be assumed to get a monthly income of Rs.1,250/-. In these circumstances, there is no justification for not accepting Ext.A13 salary certificate issued by the employer notwithstanding the fact that the author of that certificate was not examined as a witness. We find force in that submission. Consequently the appellant will be entitled to further amount of compensation under the head `loss of earnings and loss of earning capacity'. 5. The learned counsel for the appellant submits that the Tribunal erred grossly in awarding only a total amount of Rs.3,000/- under the heads of bystander's expenses and extra nourishment. The Tribunal ought to have noted that he was inpatient for a period of about 30 days in the local hospital and there was long spell of treatment as an outpatient at Medical M.A.C.A No.1102 of 2006 4 College Hospital, Trivandrum. A realistically higher amount must have been awarded as compensation for bystander's expenses and extra nourishment. We find merit in this contention of the learned counsel for the appellant. We are satisfied that a total amount of Rs.2,000/- can easily be fixed as the amount payable under this head. 6. It is next contended that under the head medical expenses only an amount of Rs.4,900/- has been awarded though bills for allopathic treatment itself shows that such expenditure has been incurred. According to the appellant as is usual, after the trauma suffered, he was compelled to undergo ayurvedic treatment also. No amount has been awarded under this head. We take note of the totality of circumstances. We are satisfied that award of an amount of Rs.8,000/- under the head `medical expenses' would, in these circumstances, be reasonable. 7. The learned counsel for the appellant next contends that though while computing the loss of earnings an amount of Rs.1,700/- has been reckoned as the monthly income when it came to computation of compensation for reduction in earning capacity for no explicable reason the multiplicand was reckoned as Rs.1,500/-. This is an obvious error and this error deserves to M.A.C.A No.1102 of 2006 5 be corrected, submits counsel. We agree. We have already reckoned Rs.2,000/- as the monthly income. The counsel then contends that the Tribunal for no reason did not accept the disability certificate issued by the Professor and Orthopedic Surgeor, Medical College Hospital. The medical expert had given details of the nature of the disability and had certified that the permanent disability was 13%. Malunited fracture of the left leg with displacement and excessive callus, limitation in knee flexion (1100), dorsiflexion of ankle nil are the specific instances of impairment noted in the report. 13% has been described to the permanent disability. The Tribunal erred in accepting only 8% without any justification. We take note of the nature of employment of the appellant. We take note of the nature of disability suffered. Physical disability cannot be reckoned as synonymous with reduction in earning capacity. In the circumstances of the case considering the nature of the employment and the nature of the physical disability described in Ext.A7 disability certificate, we feel that it would be only reasonable to reckon percentage reduction in earning capacity at 10%. The appellant would consequently be entitled for a higher amount of compensation under the head loss of earning capacity. M.A.C.A No.1102 of 2006 6 8. Finally the counsel submits that no amount has at all been awarded under the head loss of amenities. Physical disability suffered by a person usually has two reflections - on the earning capacity and on the quality of enjoyment of life. The appellant is found to be a person aged 46 years. He will, going by the longevity of an average Indian, have to endure the disability for a period of about 2 ½ decades. 13% is the physical disability assessed and we have already referred to the nature of the disability. We find merit in the contention of the appellant that amounts must have been awarded for this reflection of the disability - impairment in the quality of enjoyment of life. In the circumstances, we are satisfied that an amount of Rs.10,000/- can be awarded under the head `loss of amenities'. 9. 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 already awarded by the Tribunal. i) Loss of earnings [(2000 X 4=8000) minus 6,800) : Rs.1,200/- ii) Bystander's expenses and extra nourishment (5000 minus 3000) : Rs.2,000/- M.A.C.A No.1102 of 2006 7 iii) Medical expenses (8,000 minus 4,900) : Rs.3,100/- iii) Loss of earning capacity [(2000 X 12 X 13 X 10/100=Rs.31,200/-) minus 18,720/-] : Rs.12,480/- iv) Loss of amenities (no amounts awarded): Rs.10,000/- ............... Total Rs.28,780/- ............... (Rupees Twenty eight thousand seven hundred and eighty only) 7. Needless to say, the entire amount of compensation shall carry interest at the rate directed by the Tribunal from the date of the petition to the date of payment. 8. This appeal is allowed in part to the above extent. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-