M.A.C.A.No.192 of 2007 (Binu v. Ramesh, L. Arunthathi and United India Insurance Co. Ltd.)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 MACA.No. 192 of 2007() ---------------------OPMV.389/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- BINU, S/O.SIVARAMAN, CHERIPURATHU HOUSE, MUTTABALAM, KOTTAYAM. BY ADV. SRI.B.SAINU RESPONDENT(S): RESPONDENTS -------------------------- 1. RAMESH, S/O.SWAMYKAN 16/IA, OTTAYAL VILAN, KANYAKUMARI, -DO- DISTRICT. 2. L.ARUNTHATHI, W/O. K.SIVAJI, (MIDDLE STREET), 2/42, CENTRAL STREET, KANYAKUMARI P.O., -DO- DISTRICT. 3. UNITED INDIA INSURANCE CO. LTD., NAGARCOIL. ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.192 of 2007 ---------------------------------------Dated this the 3[rd] day of August 2011 ## **O R D E R & J U D G M E N T** ## **R.BASANT,J** ## **C.M.Appl.No.193 of 2007** This application is to condone the delay of 317 days in filing the M.A.C.A. We have heard the learned counsel for the appellant and the learned counsel for the Insurance Company. We take a lenient view. This petition is allowed. Delay is condoned. ## **M.A.C.A.No.192 of 2007** The appellant was the claimant before the tribunal. He, a driver, aged 25 years, had suffered personal injuries in an accident which took place on 07/05/2001. At the relevant time, he was driving a jeep. Against a total amount of Rs.7,00,000/claimed, the Tribunal awarded an amount of Rs.2,57,300/- as per the details given below along with interest at the rate of 6% per annum. An amount of Rs.7,000/- was awarded as cost. 2 M.A.C.ANo.192 of 2007 ||Amount (Rs.)| |---|---| |Pain and Sufferings|30,000/-| |Loss of earnings|24,000/-<br>(Rs.2,000/- x 12)| |Transport|10,000/-| |Treatment Expenses<br> (Rs.24,969.28 bills)|25,000/-| |Extranourishment/<br>bystander|10,000/-| |Disability 25 per cent<br>(2000 x 12 x 25/100 x 18)|1,08,000/-| |Loss of amenities|50,000/-| |Damage to clothing|300/-| |**Total**|**2,57,300/-**| 2. The challenge is directed only against the quantum of compensation fixed by the Tribunal. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on the following grounds: i) The monthly income reckoned by the Tribunal is grossly inadequate. ii) The appellant had suffered disability to the tune of 58%, the Tribunal erred in reckoning reduction in earning capacity only at 25%. 3 M.A.C.ANo.192 of 2007 iii) Expenses for transportation proved by production of vouchers was not accepted by the Tribunal entirely. iv) No specific amount has been awarded as compensation for loss of expectancy of life and impairment in marriage prospects. v) Interest awarded at 6% per annum is grossly inadequate. 3. We have considered all the relevant aspects. The appellant was, without dispute, driving a jeep at the relevant time of the accident. The accident took place on 07/05/2001. The appellant could not produce any authentic documents about the income earned by him. The Tribunal hence reckoned the monthly income at Rs.2,000/- only. According to the learned counsel for the appellant, this is grossly inadequate. In 2001, the Supreme Court in **Lata Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** has taken the view that even for a house wife, for the services rendered in the house, the monitory equivalent of services can be reckoned as Rs.3,000/per month. The presumption of prudence permitted under clause 6 of the second schedule enables the Tribunals to draw 4 M.A.C.ANo.192 of 2007 the presumption of prudence, even in the absence of any evidence that even a non-earning person can be assumed to earn an income of Rs.1,250/- per month. That stipulation was made as early as in 1994 though it has not been upwardly modified by the Legislature or the Central Government subsequently. In an employment like that of the petitioner, it would be idle to expect the claimant/injured to produce very authentic documentary evidence to prove the quantum of monthly income. Reasonable inferences have got to be drawn by a Tribunal. The Tribunals must always bear in mind that the realities in life cannot be ignored or overlooked. Law cannot be far distant from life. The inability to produce documentary evidence to prove monthly income should not persuade the Tribunals to throw their hands up in helplessness. Reasonable inference have got to be drawn even in the absence of better evidence. We agree with the learned counsel for the appellant/claimant on this aspect. Considering the nature of employment, the age of the victim, the date on which the accident took place and taking into account the possible future increase in prospects, we are certainly of the opinion that Rs.3,000/- could safely have been reckoned as the 5 M.A.C.ANo.192 of 2007 monthly income of the claimant/appellant. This alteration of the monthly income will have reflections both in the amount awarded under the head of loss of earnings and reduction in earning capacity (ascertained by the multiplier-multiplicand method). 4. We then come to the challenge against the extent of disability. As a matter of fact, for the purpose of ascertaining compensation by the multiplier-multiplicand method, the extent of physical disability is not crucial by itself. That may be crucial later when we assess the compensation payable under the head of loss of amenities or impairment in the marriage prospects. While ascertaining compensation payable for reduction in earning capacity, what is crucial is the reduction in earning capacity resulting from the physical disability suffered. The Tribunal, in this case, reckoned the extent of reduction in earning capacity of the appellant as a driver at 25%. The reasons given by the Tribunal are extracted below: “It is evident from medical records that in the accident the petitioner sustained fracture pelvis pubic syphysis bilateral public ramus fracture, left sacroiliac joint distraction blunt 6 M.A.C.ANo.192 of 2007 injury abdomen rupture spleen, rupture urinary bladder, rupture posterior urethra and urinary bladder neck and other multiple contusion and other lacerations for which he underwent emergency laprotomy and spleenectomy, bladder rupture repaired and supra pubic Cystostomy done and fracture pelvis stabilised with an external fixator. From the available materials on record I find that the petitioner is having a disability of 25% and that 25% of disability which affects his earning capacity by 25% and for fixing compensation multiplying his monthly income by its multiplier as 18 I award Rs.1,08,000/- as compensation.” 5. The learned counsel for the appellant submits that 28% is the orthopedic functional disability assessed by the Doctor in Ext.A6. Ext.A7 was another disability certificate issued from the Department of Genitourinary Surgery and that opines that the extent of disability is 30% on account of erectile dysfunction and urinary incontinence. Though this disability of 30% (20% + 10%) may impair the quality of life, we do not think it has any practical or direct impact or bearing on the reduction in earning capacity which, according to us, can be safely 7 M.A.C.ANo.192 of 2007 reckoned at 28% as revealed in Ext.A6. Even the urinary incontinence may indirectly affect the earning capacity. The learned counsel for the appellant submits that the appellant is compelled to carry urinary bag even when he goes for employment. He is unable to pursue his employment normally, contends the counsel. We take note that under the head of loss of amenities, an amount of Rs.50,000/- has already been awarded. We are, in these circumstances, satisfied that it would be absolutely safe to reckon 28% certified in Ext.A6 as the orthopedic functional disability as the reduction in earning capacity also. 6. Though an amount of Rs.50,000/- has been awarded under the composite head of loss of amenities, the learned counsel for the appellant submits that this amount of Rs.50,000/-, evidently fixed taking into account the orthopedic genitourinary disability certificate in Exts.A6 and A7 is insufficient to take care of the diminition in marriage prospects of the appellant. He was a bachelor, aged 25 years, at the relevant time. We do note that an amount of Rs.50,000/- has been awarded under the head loss of amenities; but in the facts and circumstances of this case, we 8 M.A.C.ANo.192 of 2007 feel that the appellant is entitled for award of a further reasonable amount under the specific head of impairment in marriage prospects. The counsel submits that the appellant remains unmarried even now. No satisfactory evidence is forthcoming on that aspect. Be that as it may, we agree that a further specific reasonable amount must be awarded for that dimension of loss suffered by the appellant. 7. Lastly, it is contended that interest has been awarded only at the rate of 6% per annum. The learned counsel argues and we agree that interest must have been awarded at a higher rate by the Tribunal. Consistent with the practice adopted by us, we hold that interest must have been awarded at 7.5% per annum. 8. The above discussions lead us to the conclusion that the appellant is entitled to the following further amounts in addition to the amounts already awarded by the Tribunal. - i) Loss of earnings Rs.12,000/[Rs.36,000/- (Rs.3,000/- x 12) minus Rs.24,000] - ii) Reduction in earning capacity [Rs.1,81,440/- (3,000 x 12 x 28/100 x 18) Rs.73,440/minus 1,08,000/-] 9 M.A.C.ANo.192 of 2007 - iii) Compensation for impairment in marriage prospects Rs.25,000/- ## **Total** **Rs.1,10,440/-** 9. In the result, - a) This M.A.C.A is allowed in part. b) The appellant is found entitled to a further amount of Rs.1,10,440/- (Rupees one lakh ten thousand four hundred and forty only) in addition to the amounts already awarded by the Tribunal . c) We direct that the entire amount shall carry interest at the rate of 7.5% per annum from the date of the petition to the date of deposit/realisation. - d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.ANo.192 of 2007 10 11 M.A.C.ANo.192 of 2007 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010