Manoj Kumar P v Saji P.P., K.S. Prahaladan and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 MACA.No. 1497 of 2011() ----------------------- O.P.(MV) NO.1474/04 ON THE FILE OF THE MACT, PAPTHANAMTHITTA. APPELLANT(S): -------------- MANOJ KUMAR P, MANGATTU MANOJ NIVAS HOUSE, MANJADI P.O., KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK BY ADV. SRI.T.K.KOSHY RESPONDENT(S): --------------- 1. SAJI P.P., S/O.PATHROSE, PEROOKKOTHIL HOUSE, PANANADU P.O.,CHENGANNOOR - 686101 2. K.S.PRAHALADAN, S/O.SADASIVAN, KUNNATTUPARAMBIL HOUSE, KURUCHI P.O., CHANGANASSERRY- 3. BRANCH MNAGER, UNITED INDIA INSURANCE CO.LTED, BRANCH OFFICE, HOSPITAL ROAD, KOCHIN-682011 ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & V. CHITAMBARESH, JJ.** **------------------------------------------------M.A.C.A. No.1497 of 2011 ------------------------------------------------Dated this the 9[th] day of November, 2011** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. He, a 34 year old Supervisor/Site Engineer working in a construction company, claimed compensation for personal injuries suffered by him in a motor accident which took place on 9/9/2004. He had suffered multiple injuries including fractures. He suffered (1) garden type IV fracture neck of femur left hip; (2) comminuted fracture patella left; (3) condylar fracture tibia left; (4) fracture metacarpal 3[rd] , 4[th] and 5[th] left hand. He underwent surgical procedure. He was an inpatient for a period of 16 days. He suffered permanent disability. The extent of physical disability was ascertained as 25% by a Medical Board under Ext.A6 certificate. The appellant appeared before the Tribunal and the Tribunal noted the disability as insisted by the decision in Kalesh v. Sudheer (2010 (1) KLT 537). The Tribunal, against a total claim limited to `4,00,250/-, directed payment of an amount of `2,67,400/- as per the details given in paragraph-13 of the impugned award which we extract ## **M.A.C.A. No.1497 of 2011** -: 2 :- below: |**_Sl.No._**|**_Head of claim_**|**_Amount awarded_**<br>**_(in Rs.)_**|**_Basis - vital details_**<br>**_in a nut shell_**| |---|---|---|---| |1|Pain and sufferings|25,000/-|| |2|Loss of amenities of life,<br>inconvenience and discomforts<br>caused|15,000/-|| |3|Medical and treatment expenses|65,900/-|Ext.A8 series| |4|Transportation expenses|2,000/-|| |5|Damage to clothings and articles|500/-|| |6|Bystander's expenses|2,000/-|| |7|Extra nourishment|1,000/-|| |8|Loss of earning|12,000/-|4 months| |9|Future medical expenses|Nil|| |10|25% Disability caused|1,44,000|Ext.A6 (3000 x 12 x<br>25 x 16/100)| |Total<br>Limited to Rs.4,00,250/-||**2,67,400/-**|| 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company which has been made entirely liable under the impugned award to satisfy the award. Challenge is raised only against the quantum of compensation awarded. 3. Called upon to explain and be specific, the learned counsel for the appellant assails the impugned award on various grounds. First of all, it is contended that the monthly income of the appellant, a 34 year old Supervisor/Site Engineer, was reckoned by the Tribunal at `3,000/- notwithstanding the ## **M.A.C.A. No.1497 of 2011** -: 3 :- production of Ext.A9 certificate issued by the employer of the appellant which shows that he was earning an income of `7,500/per mensem. It was further shown in that certificate that he was employed by a Construction Company till the date of accident only. This was evidently against the assertion in the claim petition that he was earning only an income of `6,000/- per mensem. The Tribunal did not, in these circumstances, choose to accept and act upon Ext.A9 certificate. However, the Tribunal did take note of the fact that even in the First Information Statement it has been asserted that the claimant is a Diploma holder in Civil Engineering. But in spite of this, the Tribunal reckoned the monthly income of the appellant at `3,000/-. The accident had taken place on 9/9/04. The learned counsel points out that even for a non-earing home maker or an unskilled manual worker, it is absolutely safe to draw an inference that he must have been earning an income of `3,000/- per mensem going by the dictum in **Lata Wadhwa v. State of Bihar** (AIR 2001 SC 3218) and **Laxmi Devi v. Mohammad Tabbar** (2008 ACJ 1488). In these circumstances, it is urged that a higher monthly income ought to have been presumed reasonably in the case of the appellant, a Diploma holder Supervisor/Site Engineer. Before this Court to bolster the said claim, a course and conduct certificate issued by ## **M.A.C.A. No.1497 of 2011** -: 4 :- the N.S.S. Polytechnic, Mannam Nagar, Pandalam, is produced to show that the appellant/claimant had undergone the three year Diploma Course in Civil Engineering. We find no difficulty in accepting that the appellant was employed as a Site Engineer/Supervisor and was having the qualification of Diploma in Civil Engineering. Even in the absence of any better evidence about the quantum of monthly income of the appellant, we find it safe, in the totality of circumstances, to assume that the appellant must have been earning an income of `4,000/- per mensem. We cannot afford to lose sight of the principle that the burden is always on the shoulders of the claimant to make authentic and cogent data available to support and establish the claim. Even in the absence of such data, reasonable inferences can be drawn by the Court bearing the fact always in mind that in the absence of specific and authentic data it is only the claimant who can be put to suffer. At any rate, the assumption that the claimant must have been earning an income of `4,000/- per mensem at least, does appear to us to be absolutely safe, fair and reasonable. This would mean that the quantum of compensation payable under the head of loss of earnings and reduction in earning capacity will have to be re-worked. 4. The learned counsel for the appellant then contends that ## **M.A.C.A. No.1497 of 2011** -: 5 :- the Tribunal had not assessed the extent of reduction in earning capacity satisfactorily. 25% disability is proved by Ext.A6 disability certificate issued by the Medical Board. The Medical Board has not specifically ascertained the extent of reduction in earning capacity. In the absence of better evidence, the Tribunal assumed that 25% physical disability must have resulted in reduction in earning capacity also to identical extent. In coming to this conclusion, certainly the Tribunal must have noted that the nature of employment of the appellant as a Supervisor/Site Engineer is such that certain amount of mobility is absolutely essential. But we are unable to agree that the Tribunal should have reckoned the extent of reduction in earning capacity to be any higher extent on the basis of the inputs available. The learned counsel for the appellant contends and we agree that there can be no doubt on that proposition that the extent of physical disability and extent of reduction in earning capacity are different concepts. The Tribunal, it is seen, had accepted the disability of the appellant and had thereafter come to the conclusion that the reduction in earning capacity can also be reckoned at 25%. We do not find any reason to interfere with the said finding, notwithstanding the valiant attempt made by the learned counsel for the appellant to persuade us to assume that ## **M.A.C.A. No.1497 of 2011** -: 6 :- higher percentage of reduction in earning capacity must necessarily have resulted. 5. The learned counsel for the appellant points out and we agree that the multiplier adopted by the Tribunal (16) is not correct and 17 deserves to be reckoned as the multiplier for the appellant - a person aged between 30 and 35 years, as per the Second Schedule to the Motor Vehicles Act when compensation is assessed for permanent disablement. 6. The learned counsel for the appellant then contends that under the head of extra-nourishment only an amount of `1,000/has been awarded. Considering the nature of injuries, period of inpatient treatment and probable period of outpatient treatment higher amount ought to have been awarded under that head, contends counsel. We are persuaded to agree that an amount of `3,000/- can be awarded under the head of extra-nourishment. 7. The learned counsel for the appellant finally contends that the Tribunal erred grossly in awarding only an amount of `15,000/- as compensation for loss of amenities. Physical disability of 25% has been suffered by the young claimant/ appellant - aged 34 years. This disability suffered by him will have two fold reflections on his life. It reduces his earning capacity. It would also impair the quality of enjoyment of life for ## **M.A.C.A. No.1497 of 2011** -: 7 :- the entire rest of his life. For the latter dimension of loss, only an amount of `15,000/- has been awarded in addition to the amount of compensation awarded under the head of reduction in earning capacity. We are satisfied that the said amount can be enhanced to `25,000/-. 8. For 15 days long period of treatment, an amount of `65,900/- has been awarded as compensation for medical and treatment expenses. We are not persuaded to agree that the said amount deserves any modification. 9. We are not persuaded to agree that the amount awarded under any other head demands or warrants interference. 10. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of `76,000/- (Rupees seventy six thousand only) as compensation in addition to the amount already awarded by the Tribunal as shown below: |1.|Extra-nourishment||| |---|---|---|---| ||(`3,000/- minus `1,000/-)|-|`2,000/-| |2.|Loss of earnings||| ||(4x `4,000/- = `16,000/-||| ||minus `12,000/-)|-|`4,000/-| |3.|Reduction in earning capacity||| ||(`4,000/- x 12 x 25/100 x 17 =||| ||`2,04,000/- minus `1,44,000/-)|-|`60,000/-| ## **M.A.C.A. No.1497 of 2011** -: 8 :- 4. Loss of amenities - (`25,000/- minus `15,000/-) `10,000/------------Total `76,000/====== ## 11. In the result: ## (a) This appeal is allowed in part. - (b) The appellant is found entitled to a further amount of - `76,000/- (Rupees seventy six thousand only) in addition to the amount already awarded by the Tribunal. (c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal in the impugned award. (d) All other directions of the Tribunal are upheld. Sd/- **R. BASANT** **(Judge)** **Sd/V. CHITAMBARESH (Judge)** **Nan/** **//true copy// P.S. to Judge** ## **M.A.C.A. No.1497 of 2011** -: 9 :- # **R. BASANT & V. CHITAMBARESH, JJ.** **------------------------------------------------C.M. Appl. No.2296 of 2011 in M.A.C.A. No.1497 of 2011** **------------------------------------------------Dated this the 9[th] day of November, 2011** ## **ORDER** This petition is to condone the delay of 72 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. Petition allowed. Delay condoned. **R. BASANT (Judge)** **V. CHITAMBARESH (Judge)** **Nan/**