IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 925 of 2005()
1. VENU, S/O.RAMAN,
... Petitioner
Vs
1. MANAGING DIRECTOR,
... Respondent
2. YASIN, S/O.ABDULLA,
For Petitioner :SRI.P.S.NANDANAN
For Respondent :SRI.SUBHASH CYRIAC
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.925 of 2005
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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 had suffered personal injuries in an accident which occurred
on 23.03.2001. He was aged 37 years on the date of the accident
and he was employed as Principal and Director of a Teachers’
Training College. He claimed that he was getting an amount of
Rs.8,000/- per mensem. He suffered multiple injuries including
loss of teeth, fracture of maxilla on both sides, fracture mandible
right and left condyle, fracture mandible symphysis as also
fracture of the shaft of radius (left). He was an inpatient for a
period of 10 days. He had to continue treatment thereafter. He
allegedly suffered permanent physical disability which was
certified to be 15% by the doctor in Ext.A8. Before the Tribunal
the appellant examined himself as PW1. Exts.A1 to A14 were
marked.
2. The Tribunal on an anxious consideration of all the
relevant inputs came to the conclusion that the appellant is
entitled to an amount of Rs.1,00,285/- as compensation as per
the details shown below:
M.A.C.A No.925 of 2005 2
1. Loss of earning Rs.18,000/-
(6 X 3000)
2. Transport to hospital Rs. 2,000/-
3. Medical expenses Rs.34,785/-
(covered by bills)
4. Bystander's expenses Rs. 2,000/-
5. Pain and suffering Rs.12,500/-
6. Compensation for disability/
loss of amenities (global
amount fixed) Rs.30,000/-
Total Rs.1,00,285/-
The said amount was directed to be paid along with interest @
6% per annum.
3. The appellant claims to be aggrieved by the impugned
award. What is the grievance? Called upon to explain the
precise nature of the challenge which the appellant wants to
mount against 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 interest has been
awarded only @ 6% per annum. Relying on precedents, it is
contended that interest must have been awarded at least @ 7.5%
per annum. We agree with the counsel.
M.A.C.A No.925 of 2005 3
5. The learned counsel then contends that the monthly
income of the appellant reckoned for the purpose of
ascertainment of loss of earnings at Rs.3,000/- per mensem is
grossly inadequate. No evidence whatsoever is produced to
prove the monthly income of the appellant. In these
circumstances, we take the view that the Tribunal cannot be
faulted for drawing a presumption of prudence that at least
Rs.3,000/- must have been earned every month by the appellant
at the relevant time, in the absence of better evidence. It must
have been very easy in the circumstances of the case to produce
such evidence about income. The appellant can blame only
himself for not enabling the Tribunal to pass a proper award if
he feels that the award is not proper.
6. The learned counsel then contends that no amount
has been awarded under the head `reduction in earning
capacity’ though the Tribunal had entered a positive finding that
there has been disability to the extent of 12%. The Tribunal
appears to have taken the view that an amount of Rs.30,000/-
can be paid under the head compensation for disability/loss of
amenities. But no amount has at all been awarded under the
head reduction in earning capacity. We have been taken
through Ext.A8 disability certificate in detail. The nature of the
M.A.C.A No.925 of 2005 4
alleged disability suffered reveals that such disability was
unlikely to have a direct substantial bearing on the earning
capacity of the appellant. The appellant is stated to be the
Principal of a Teachers’ Training Institution. The disability
includes tenderness and instability to inferior radio ulnar joint
left. Nerve palsies were suffered, it is further noted. In these
circumstances, we are further satisfied that though the
percentage of physical disability certified in Ext.A8 to be 15%
and accepted by the Tribunal to be 12%, may not result in
reduction of earning capacity to an identical extent must
certainly be held to reduce the earning capacity of the appellant.
The Tribunal, we agree with the learned counsel for the
appellant, erred in not awarding any amount under the head of
loss of earning capacity. Taking the totality of circumstances
into account, we take the view that the physical disability of 12%
accepted by the Tribunal can safely be assumed to result in
reduction in earning capacity to the extent of 5%. The appellant
is entitled to be compensated for such reduction/impairment in
the earning capacity. The appellant is shown to be aged 37
years on the date of the accident and 16, as stipulated in the
second schedule, can be accepted as the multiplier. We are not
M.A.C.A No.925 of 2005 5
persuaded to agree that the amount awarded under any other
head warrants appellate interference.
7. The above discussions lead us to the conclusion that
the appellants are entitled for a further amount of Rs.28,800/-
under the head reduction in earning capacity (Rs.3000 X 12 X 16
X 5/100) in addition to the amounts already awarded by the
Tribunal.
8. We further direct that the entire amount of
compensation shall carry interest @ 7.5% per annum from the
date of petition till payment.
9. This appeal is allowed in part to the above extent.
(R.BASANT, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
rtr/-