IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 694 of 2003()
1. BINU S/O. PAUL, KANDANALIL HOUSE,
... Petitioner
Vs
1. MANAGING PARTNER, M/S.CONCRETE
... Respondent
2. ARJUNAN S/O. NARAYANAN NAIR,
3. M/S. UNITED INDIA INSURANCE CO. LTD.,
For Petitioner :SRI.P.V.GEORGE(PUTHIYIDAM)
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :03/04/2009
O R D E R
R.BASANT & C.T.RAVIKUMAR, JJ.
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M.A.C.A No.694 of 2003
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Dated this the 3rd day of April, 2009
JUDGMENT
BASANT, J.
Claimant before the Tribunal is the appellant before us. He
suffered personal injuries in a motor accident which occurred on
21.09.1999. He was aged 22 years on the date of the accident.
He claimed to be a conductor earning a monthly income of
Rs.4,500/-. A total amount of Rs.7 lakhs was claimed as
compensation. Multiple fractures were suffered by the appellant
including odontoid fracture indirect optic nerve injury right side,
fracture of left humerus, left distal radius and left ulna and right
clavicle and left radius and ulnar nerve palsees and complete
loss of vision of right eye. He was an inpatient for a period of 15
days. He had to continue treatment as outpatient for a long
further period. He had to undergo Physiotherapy also. He had
suffered permanent physical disability. He had orthopaedic as
also visual disability. Visual disability on account of complete
loss of vision of right eye was assessed to be 30%. Orthopedic
disability on account of the multiple fracture suffered was
M.A.C.A No.694 of 2003 2
assessed to be 35%. Doctors who issued the relevant disability
certificates were examined before the Tribunal. Before the
Tribunal oral evidence of PWs 1 to 5 and Exts.A1 to A25 were
marked.
2. The Tribunal on an anxious consideration of all the
available inputs proceeded to pass the impugned award directing
payment of the following amounts:
i) Pain and suffering : Rs.25,000/-
ii) Reduction in earning
capacity :
(1,800X12X17X30/100) : Rs.1,10,160/-
iii) Loss of amenities : Rs. 30,000/-
iv) Medical expenses : Rs.60,000/-
(Against bills produced)
v) Transport to hospital : Rs.2,350/-
vi) Damage to clothing : Rs.3,000/-
vii) Bystander's expenses
& extra noursihment : Rs.2,000/-
viii) Loss of earnings
(6 X 1800) : Rs.10,800/-
...................
Total : Rs.2,40,610/-
...................
M.A.C.A No.694 of 2003 3
The Tribunal further directed that the said amount be paid along
with interest @ 9% per annum.
3. The appellant claims to be aggrieved by the impugned
award. The learned counsel for the appellant assails the
impugned award on various grounds.
4. First of all it is contended that the monthly income of
the appellant reckoned by the Tribunal at Rs.1,800/- is too low
and perversely unrealistic. There is clinching evidence to show
that the appellant was a conductor at the relevant time. The
counsel points out that the second schedule to the Motor
Vehicles Act permits the Tribunals to assume that even a non
earning person can be assumed to earn Rs.1,250/- per mensem.
The income of Rs.1,800/- for a young qualified conductor aged 22
years is perverse, submits the learned counsel.
5. We find merit in that contention. We feel that it
would be absolutely safe to assume that the monthly income of
the appellant was Rs.3,000/- per mensem. In coming to this
conclusion we take note of the conductor’s licence produced by
the appellant as also a certificate issued by his employer making
a claim that he was being paid Rs.4,500/- per mensem. That
certificate has not been proved satisfactorily. At any rate, we are
M.A.C.A No.694 of 2003 4
satisfied that a presumption of prudence can be drawn that the
appellant must have been earning an income of Rs.3,000/- per
mensem.
6. The learned counsel for the appellant next contends
that the Tribunal erred in reckoning the extent of reduction in
earning capacity at 30%. The two certificates issued by the
doctors who were also examined before the Tribunal shows that
30% visual disability is there consequent to complete loss of one
eye vision. Orthopedic disability had also been suffered. That of
course is the physical disability. This physical disability is bound
to have reflection on the earning capacity of the appellant as also
impairment in the quality of enjoyment of life which the
appellant, a 22 year young conductor, can aspire to lead in
future. The Tribunal erred in assuming that only 30% disability
has been resulted. As to what is the composite resultant
reduction in earning capacity, there is no clinching and
convincing data. We take note of the certificate issued by the
doctors of the two disciplines. We are satisfied, in these
circumstances, that it would be safe to assume that the appellant
has suffered reduction in earning capacity to the extent of 45%
on account of the physical disabilities suffered. Even in the
M.A.C.A No.694 of 2003 5
absence of better, more specific and crisp evidence on the point,
we feel that 45% can safely be reckoned as the total reduction in
earning capacity.
7. The counsel contends that compensation awarded
under the head loss of amenities as Rs.30,000/- is not adequate.
We note that an amount of Rs.25,000/- has been awarded under
the head `pain and suffering’ and a further amount of
Rs.30,000/- for loss of amenities. We are not persuaded to agree
that any further amount need be awarded under this head. We
have already taken the view that the monthly income can be
reckoned at Rs.3,000/- per mensem. For loss of earning also,
proportionately higher amount of compensation will have to be
awarded. We are not persuaded to interfere with the amounts
awarded under any other heads.
8. 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 awarded by the
Tribunal:
1. Loss of earning capacity
(3000 x 12 x 17 x 45/100 –
Rs.2,75,400/- minus
Rs.1,10,160/-) - Rs.1,65,240/-
M.A.C.A No.694 of 2003 6
2. Loss of earnings
(6 x Rs.3,000/- minus
Rs.10,800/-) - Rs.7,200/-
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Total - Rs.1,72,440/-
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9. Needless to say, the entire amount of compensation
shall carry interest at the rate awarded by the Tribunal from the
date of the petition.
(R.BASANT, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
rtr/-