IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 MACA.No. 1397 of 2005() ----------------------- OPMV.3197/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- MR.SAJEEVAN M.D., S/O.M.A.DAS, CHAKKALAKKAL VEETTIL, EDAPPALLY NORTH.P.O., KOCHI-24. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENT(S): --------------- 1. ASHEY JOSEY.K.A., KURISUVEETIL HOUSE, CHERANALLOOR.P.O., EDAPPALLY (VIA). 2. ANOOP KUMAR, PUTHENPURAKKAL VEETIL, KOTTUVADI MUKKIL, MANJUMMEL, ELOOR. 3. THE NATIONAL INSURANCE CO. LTD., ALUVA. 4. MAHADEVAN, MATHA AMRUTHANANTHAMAI MATH, AMRUTHAPURI, KARUNAGAPPILLY. 5. TNE NEW INDIA ASSURANCE CO. LTD., ALUVA. ADV. SRI.LAL GEORGE FOR R5 SRI.JOE KALLIATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * M.A.C.A.No.1397 of 2005 ---------------------------------------- Dated this the 3rd day of March 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.1,50,000/- for the compensation for the loss suffered by him as a result of the motor accident which took place on 01/11/1996. He was aged 25 years. He was allegedly employed as a Printing Press Operator getting a monthly income of Rs.3,000/-. He suffered fracture of the patella. Patellectomy had to be done. He had to be in the hospital for nine days in two spells. He had continued treatment for a period of 5 weeks. He allegedly has suffered a disability. According to him, the physical disability was to the tune of 15%. 2. Before the tribunal, Exts.A1 to A9 were marked. The claimant examined as PW1. The tribunal, on a consideration of all the relevant materials, came to the conclusion that the appellant is entitled to an amount of Rs.46,250/- as per the details shown below: M.A.C.A.No.1397/05 2 1. Transport to Hospital Rs.500/- 2. Damage to clothing Rs.250/- 3. Extra nourishment Rs.500/- 4. Bystander expenses Rs.500/- 5. Medical expenses Rs.12,000/- (Against the bills produced) 6. Loss of earnings Rs.4,500/- (Rs.1,500/- x 3) 7. Pain and suffering Rs.15,000/- 8. Loss of amenities Rs.8,000/- 9. Physical discomfiture Rs.5,000/- Total Rs.46,250/- Interest was directed to be paid @ 9% per annum from the date of the petition. 3. The appellant claims to be aggrieved by the impugned award. Called upon to explain the precise nature of challenge which the learned counsel for the appellant wants to mount against the impugned award, the learned counsel for the appellant attacks the impugned award on two specific grounds. First of all, it is contended that the tribunal has gone wrong perversely in reckoning the monthly income at Rs.1500/- per M.A.C.A.No.1397/05 3 mensum only. In the light of the evidence tendered by the appellant as PW1 and Ext.A6 salary certificate issued by the appellant's employer, the tribunal must have reckoned the monthly earnings at Rs.3,000/- per mensum, it is first contended. The learned counsel for the appellant next contends that though the wound certificate Ext.A4, the treatment certificate Ext.A7 and the disability certificate Ext.A8 convincingly establish that patellectomy had to be done, the tribunal erred grossly in not accepting that reduction in earning capacity had resulted. Adopting the multiplier multiplicand method, compensation must have been awarded for the reduction in earning capacity consequent to the disability suffered, contends counsel. 4. The learned counsel for the insurance company, on the contrary, contends that though the appellant had produced a disability certificate issued by the doctor of the Ernakulam Medical Center to show that the appellant had suffered disability at 16%, there is nothing tangible to accept the said assessment. Except that patellectomy was done, there is absolutely no input which can justify the conclusion that physical disability has been suffered. Even the disability certificate does not give precisely M.A.C.A.No.1397/05 4 the nature of the actual disability suffered by the appellant. In these circumstances, the tribunal did not go wrong in not accepting the said disability certificate Ext.A8 which shows the disability to be 15%. The learned counsel for the insurance company points out that the tribunal was satisfied that patellectomy was done; but there was no acceptable and satisfactory materials to precisely evaluate and assess physical disability, if any, suffered and the consequent reduction in earning capacity, if any. In these circumstances, the tribunal attempted to work out justice by awarding a relatively higher amount of Rs.15,000/- under the head of pain and suffering, an amount of Rs.8,000/- for loss of amenities and an amount of Rs.5,000/- for physical difficulty suffered. In these circumstances, no further amount is liable to be awarded, contends the learned counsel for the insurance company. 5. We have rendered our anxious consideration to all the relevant inputs. That patellectomy had to be done is very evident. We are satisfied that this procedure undergone must certainly have resulted in physical disability which has reflections on the earning capacity of the appellant as also the M.A.C.A.No.1397/05 5 amenities and the enjoyment of life of the claimant. We are satisfied, notwithstanding the fact that a relatively higher amount of Rs.15,000/- has been awarded by the tribunal under the head pain and suffering, the tribunal must have awarded some further amount for reduction in earning capacity. Taking note of Ext.A4 wound certificate, Ext.A7 treatment certificate and Ext.A8 disability certificate, we are of the opinion that it would be absolutely safe to assume, even in the absence of better evidence, that the appellant must have suffered reduction in earning capacity to the extent of 6%. He is consequently entitled for an amount of Rs.18,360/- [Rs.1,500 x 12 x 17 x 6/100] as compensation under this head. Deducting the amount of Rs.5,000/- awarded under the head of physical difficulties, we are satisfied that the appellant can be awarded a further amount of Rs.13,360/- in addition to the amounts already awarded by the tribunal. 6. Though there is a contention that an amount of Rs.1,500/- reckoned as monthly income by the tribunal is not adequate, we are satisfied on the materials available that the presumption of prudence drawn by the tribunal that Rs.1,500/- M.A.C.A.No.1397/05 6 can be reckoned as the monthly income and that Rs.3,000/- as shown in Ext.A6 salary certificate cannot be blindly accepted are correct. They do not warrant appellate interference. We are satisfied that the interest awarded does not warrant interference. 7. In the result, a) This M.A.C.A is allowed in part. b) It is held that the appellant is entitled to a further amount of Rs.13,360/- (Rupees thirteen thousand three hundred and sixty only) in addition to the amounts already directed by the tribunal. Needless to say, the entire amount shall carry interest from the date of the petition as already directed. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.1397/05 7 M.A.C.A.No.1397/05 8 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009