IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 MACA.No. 1483 of 2006(G) ----------------------- OPMV.1029/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ----------------------------------- VENUGOPALAN, S/O. KRISHNAN MENON, VELLANNOOR HOUSE, KATHIKUDAN, KORUTTY. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): RESPONDENTS --------------------------- 1. MERCY RAJU, KOCHUTHUNDIL HOUSE, ARUKALICKAL WEST, VAYALA PERALIDE, ADOOR. 2. SURESH K., PUTHENVEETIL HOUSE, CHERUVILAYIL VAYALA, P.O.ADOOR. 3. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., KIZHAKKEDATH BUILDING, MAIN ROAD, PATHANAMTHITTA. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````````````````````` M.A.C.A. No. 1483 OF 2006 ```````````````````````````````````````````````````````````````````` Dated this the 9th day of July, 2009 J U D G M E N T K.M. Joseph, J. The appellant is the petitioner in a petition filed under Section 166 of the Motor Vehicles Act. The Tribunal has awarded a total sum of Rs.39,655/- with interest at the rate of 6% from the date of petition till the date of realisation. The appeal is directed against the quantum. 2. We heard Adv. Sri. T N Manoj, learned counsel for the appellant and the learned counsel for the third respondent, Insurance Company. 3. Learned counsel for the appellant raised following contentions. In the first place, he would submit that the income fixed by the Tribunal is meager. The income has been arrived at a sum of Rs.2,300/- for calculating for loss of earning and when it comes to fixing the compensation towards future disability after retirement his income is taken only at Rs.1,500/- per month, it is complained. M.A.C.A. No. 1483 OF 2006 : 2 : 4. Secondly, it is contended that though it was certified that the appellant suffers from 7% permanent partial disability what is reckoned is only 4%. Thirdly, he contended that the amount awarded towards loss of amenity is only Rs.3,000/- Fourthly, he contends after finding that the appellant is entitled to proportionate costs in the relief portion it is omitted. 5. The first question to be considered is, what was the income. The appellant had given evidence to show that he was working as a headload worker under a firm V.K.P. Menon and Company. Ext.A9 is the employment certificate. Ext.A 10 is leave certificate. PW2 is one of the Partners of the firm. It is despite all this, it is complained that the income is fixed at a low level, as already referred. He also points out that the actually produced wage slips which would indicate that the appellant was drawing a sum of Rs.11,000/- in the aggregate, included basic of Rs.8,000/- . Learned counsel for the respondents would contend that the wage slips were not marked. The Tribunal has found that the appellant is entitled to a compensation for disability only after his retirement as the appellant has a permanent job. The job of the appellant is M.A.C.A. No. 1483 OF 2006 : 3 : found to be that of a head load worker and the accident took place in the year 2000. We would think that having regard to fact of this case, the income can be safely fixed as Rs.6,000/- per month, having regard to the permanent nature of appointment and also having regard to his vocation. We feel also feel that we can act upon the employment certificate and calculate the loss of earning for a period of 3 months. If that is so the loss of earning would be Rs.18,000/-, and after deducting the amount Rs.7,800/- the enhancement will be Rs.10,200/-. As far as the question of disability is concerned, we feel that the appellant will be is justified in demanding that the percentage of disability should be fixed at 7% instead of 4%. The Tribunal has stated as follows: “The petitioner sustained head injury, fracture, fronto parietal region, fracture left 4th, 5th and 6th ribs, abrasion etc. Considering the nature of injuries sustained and the functional difficulties such as difficulty for deep inspiration due to pain, chronic pulmonary infection, to raise heavy objects for carrying heavy object on the back I consider that the petitioner sustained permanent disability of 4%. “ M.A.C.A. No. 1483 OF 2006 : 4 : 6. No reason is given to brush aside the percentage of disability. In view of the fact the percentage is fixed only at 7%, we feel that it need not be reduced and it can be accepted in toto. Accordingly, we fix the percentage of disability at 7%. The next question is what is to be fixed as income of the appellant after retirement. Having regard to the broad realities of wage structure prevalent in the state and also the job of the appellant we can fix the income as Rs.2,000/- per month instead of Rs.1,500/-. Applying these components the appellant will be entitled to Rs.7,680/- more. 8. The Next question is as to whether any more amount is to be awarded in excess of what was awarded towards loss of amenity. The Tribunal found that due to the injury he got difficulties for deep inspiration due to pain and to raise heavy objects. We feel that we can award Rs.3,000/- more towards amenities. Thus the appellant would be entitled Rs.20,880/- more which is rounded off to Rs.21,000/-. The appellant is also entitled to the cost which he was found to be entitled by the Tribunal. With regard to the rate of interest, the Tribunal has awarded only 6%. M.A.C.A. No. 1483 OF 2006 : 5 : The appellant is justified in contending that the Tribunal should have awarded interest at 7.5%. Accordingly the amount awarded already awarded will bear interest at 7.5%. The appellant is also entitled proportionate costs which was found by the Tribunal also. Accordingly, this appeal is allowed in part and the appellant is allowed to realise a sum Rs.21,000/- more from the date of petition till the date of realisation from the third respondent with interest at 7.5%. He is also entitled to interest at 7.5% instead of 6% on the amount already awarded and also proportionate cost which was found by the Tribunal. (K.M.JOSEPH, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) dl