IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2025 of 2007()
1. KUNCHI, W/O. LATE PAZHANI,
... Petitioner
Vs
1. IGNATIUS GOLDWIN,
... Respondent
2. THE UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.T.J.LAKSHMANAN IYER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :06/03/2009
O R D E R
R.BASANT & C.T.RAVIKUMAR, JJ.
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M.A.C.A. No.2025 of 2007
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Dated this the 6th day of March, 2009
JUDGMENT
BASANT, J.
Claimant before the Tribunal is the appellant before us.
She claimed an amount of Rs.1,52,500/- as compensation for
personal injuries suffered by her in a motor accident which took
place on 29.02.2000. She was a sweeper in Panchayat service.
She was earning an income of Rs.3,817/- per mensem. She was
aged 53 years at the time of the accident. Fracture of the neck
of left femur is the injury suffered. She was admitted as an
inpatient from 29.02.2000 to 06.04.2000 and again from
25.04.2000 to 13.05.2000 (totally for a period of 53 days in two
spells). She had allegedly suffered permanent disability and to
prove this, she produced Ext.A6 disability certificate. Ext.A6
disability gives the details of the injury and the disability left
behind. Doctor had assessed the disability to be 15%. The
doctor who issued the certificate was not examined as a witness.
Before the Tribunal no oral evidence was adduced. Exts.A1 to
A10 were marked. The Tribunal on an anxious consideration of
M.A.C.A. No.2025 of 2007 2
all the relevant inputs proceeded to pass the impugned award
directing payment of an amount of Rs.29,050/- as per the details
given below:
i) Transport to hospital : Rs. 800.00
ii) Extra nourishment : Rs. 1,000.00
iii) Damage to clothing : Rs. 400.00
iv) Medical expenses : Rs. 2,150.00
v) Bystander' expenses : Rs. 5,700.00
vi) Pain and suffering : Rs.14,000.00
vii) Compensation for
discomfiture : Rs. 5,000.00
....................
Total : Rs.29,050.00
....................
This amount was directed to be paid along with interest @ 6%
per annum.
2. 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 contends that the Tribunal has
grossly erred in not awarding any amount as compensation for
loss of earnings/loss of leave. The appellant has in fact been out
of employment for a period of about 6 months and during this
M.A.C.A. No.2025 of 2007 3
period, she had to forgo her leave/wages. There is no specific
evidence made available to find out what the period of leave was
or what amount has been lost by the appellant, covered by
eligible leave. But the Tribunal appears to have observed that at
least 24 weeks of involuntary non employment must have
resulted. We are satisfied in the facts and circumstances of this
case that even in the absence of better evidence considering the
nature of injuries, the period of hospitalisation and the details
available in the medical records, it is absolutely safe to conclude
that the appellant would have been compelled to be involuntarily
unemployed at least for a period of 4 months. For absence of
crisp, authentic, cogent and acceptable data, it is only the
claimant who can be put to suffer. We are, in these
circumstances, satisfied that the appellant must certainly have
been awarded compensation for loss of leave/earning for the said
period of 4 months. The evidence shows that her monthly
income is Rs.3,817/- on the date of the accident. We are satisfied
that a total amount of Rs.16,000/- can be awarded under this
head (4 X 4000).
3. The counsel contends that the Tribunal erred grossly
in not accepting that any disability was suffered by the appellant.
M.A.C.A. No.2025 of 2007 4
Satisfactory evidence was available about the nature of the
injury suffered, the treatment undergone and the nature of the
disability left behind by the injuries suffered. Only an amount of
Rs.5,000/- has been awarded under the head of discomfiture.
Counsel contends that appropriate amounts must have been
awarded for reduction in earning capacity as also loss of
amenities in life.
4. The Doctor who issued Ext.A6 has not been examined.
But even without examination of the Doctor, the details given –
judged in the light of the injury and its consequences, we find it
safe to conclude that the appellant must have suffered physical
disability. To prove the precise extent of physical disability,
better evidence must have been adduced. But at any rate we are
satisfied that it would be safe considering the nature of
disability, period of hospitalisation etc. that the appellant must
have suffered at least 10% disability from the details available in
Ext.A6 herein. We are satisfied that physical disability has
resulted and there must have been consequential reduction in
earning capacity.
5. Till such time that the appellant continues in
employment under the panchayat her physical disability may not
M.A.C.A. No.2025 of 2007 5
result in reduction in earnings. But greater strain will have to be
employed to perform the same amount of work which she was
able to perform. After suffering the disability, extra efforts may
be called for and for which she is entitled to be compensated.
Post superannuation employment prospects will also be effected
and we are satisfied that she must have retired from service at
the age of 55 years. For the period thereafter there must have
been reduction in earnings consequent to the reduction in
earning capacity. Appropriate multiplier-multiplicand method
can be employed and the loss suffered can be ascertained. We
are satisfied that 10% reduction in earning capacity can be
ascertained. The notional income permitted by the second
schedule to the Workmen’s Compensation Act is Rs.1,250/-. That
was the amount fixed in 1994. We are satisfied that Rs.1,500/-
can be reckoned as the probable income which the appellant
would have earned after her retirement. For the persons
between the age group 55-60 years, the second schedule permits
the acceptance of 8 as the multiplier. The appellant would
consequently be entitled for an amount of Rs.14,400/- as
compensation for reduction in earning capacity [ie. 1,500 X 12 X
8 x 10/1000]. The appellant aged 53 years had suffered
M.A.C.A. No.2025 of 2007 6
disability. She will have to endure the disability for the rest of
her life. Only an amount of Rs.5,000/- has been awarded under
the head of loss of discomfiture. We are satisfied that an amount
of Rs.12,500/- can be awarded as compensation for the loss of
amenities including impairment in the quality of life and the
discomfiture suffered.
6. The above discussions lead us to the conclusion that
the appellant is entitled for a further amount of Rs.37,900/- in
addition to amount ordered already by the Tribunal as per the
details shown below.
Loss of earnings/leave
(No amount awarded) : Rs.16,000/-
(Rs.4000/- X 4)
Compensation
for reduction in earning
capacity : Rs.14,400/-
(no amount awarded) (1500 X 12 X 8 X 10/100)
Loss of amenities : Rs.7,500/-
[12,500 minus 5,000]
.................
Total : Rs.37,900/-
................
(Rupees Thirty seven thousand and nine hundred only)
7. Interest has been awarded only @ 6% per annum. The
learned counsel submits relying on precedents that interest must
M.A.C.A. No.2025 of 2007 7
have been awarded at least @ 7.5% per annum. We agree with
the learned counsel for the appellant. We direct that the entire
amount of compensation shall bear interest @ 7.5% per annum
from the date of the petition till payment.
8. This appeal is allowed in part to the above extent.
(R.BASANT, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
rtr/-