Kerala High Court
Abraham vs Rajesh on 19 February, 2009
Bench: R.Basant, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 749 of 2005()
1. ABRAHAM, S/O. JOSEPH,
... Petitioner
Vs
1. RAJESH, S/O. THANKAPPAN,
... Respondent
2. MRS.SEENA DAVIS, MANJOORAN HOUSE,
3. UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SRI.DENY JOSEPH
For Respondent :SRI.S.MAMMU
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :19/02/2009
O R D E R
R.BASANT &
C.T.RAVIKUMAR, JJ.
* * * * * * * * * * * * * * * * * *
M.A.C.A.No.749 of 2005
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Dated this the 19th day of February 2009
J U D G M E N T
BASANT,J The claimant before the Tribunal is the appellant before us. He suffered personal injuries in a motor accident which took place on 09/02/2001. He was allegedly employed as a sales executive getting an income of Rs.10,000/- per mensum . He suffered displaced fracture of the coccyx. He was an in-patient for a period of four days. He had allegedly suffered permanent physical disability. A medical board which examined him issued Ext.A5 disability certificate to show that he was suffering physical disability to the tune of 15%. "Pain tip of the back, back pain, inability to sit due to pain, inability to lie flat due to low back pain, inability to squat and climb stairs" is the alleged disability. Tenderness at the sacral area and tip of the coccyx were also found. Spinal movement was restricted by 60%. These are reported in Ext.A6 disability certificate.
2. The claimant examined himself as PW1 and his employer as PW2. Exts.A1 to A6 were marked. No doctor was M.A.C.A.No.749/05 2 examined to prove Ext.A6.
3. The Tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant is entitled for an amount of Rs.55,500/- as compensation as per the details shown below:
1. Transport to hospital Rs.500/-
2. Loss of earnings Rs.9,000/-
(Rs.3,000 x 3)
3. Bystander's expenditure Rs.500/-
4. Extra nourishment Rs.500/-
5. Pain and suffering Rs.10,000/-
6. Loss of earning capacity Rs.10,000/- (global)
7. Loss of amenities of life Rs.15,000/-
8. Future discomfort Rs.10,000/-
Total Rs.55,500/-
Accordingly, the Tribunal awarded an amount of
Rs.55,500/- as compensation.
4. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of challenge which the learned counsel for the appellant wants to mount against the M.A.C.A.No.749/05 3 impugned award, the learned counsel for the appellant submits that loss of earning capacity has not been assessed correctly. The multiplier-multiplicand method must have been employed. The Tribunal has awarded only a global amount of Rs.10,000/-. In these circumstances, the amount awarded under the head of loss of earning capacity consequent to disability suffered warrants interference, it is submitted. The appellant has a further grievance that the multiplicand is not correctly reckoned. Only an amount of Rs.3,000/- was reckoned as income. The same is inadequate, it is contended.
5. The Tribunal took note of the evidence available about the income of the appellant. We do note that initially it was asserted that the appellant is a sales executive. In the disability certificate he is described as an office worker. The salary certificate showed that his income was only Rs.6,000/-. The tribunal, in these circumstances, was not prepared to swallow the materials placed before the court and drew a reasonable inference of prudence that notwithstanding the inadequacy in evidence, an amount of Rs.3,000/- per mensum can be reckoned as monthly earnings. In the state of evidence and materials M.A.C.A.No.749/05 4 available, we are not persuaded to agree that the said decision warrants interference.
6. The multiplier-multiplicand method was not adopted by the tribunal. But from the compensation awarded under the head of loss of amenities, loss of earning capacity and loss of discomfiture - a total amount of Rs.35,000/-, it appears to be evident that the tribunal was satisfied that the appellant has suffered physical disability as a result of the accident. The problem was one of not correctly quantifying the percentage of such physical disability. The tribunal must have taken note of the nature of injuries including fracture of the coccyx as also the details available in the disability certificate. Of course, the appellant is to be blamed for not adducing better and authentic evidence to prove the contents of the disability certificate to the satisfaction of the court. But all the same, we are not persuaded to agree that this is a fit case where the Tribunal must have come to a reasonable conclusion about the inevitable and irreducible percentage of physical disability and consequent reduction in earning capapcity. In the circumstances of the case, we are persuaded to agree that such disability on the basis of M.A.C.A.No.749/05 5 Ext.A5 as also the other details can safely be fixed at 8%. Consequently, the appellant must be held to be entitled for a total amount of Rs.37,440/- (Rs.3,000/- x 12 x 13 x 8/100). Deducting an amount of Rs.10,000/- which has already been awarded under the head of loss of earning capacity, the appellant is found entitled to a further amount of Rs.27,440/-. The challenge in this appeal succeeds to the above extent only.
7. In the result,
a) This M.A.C.A is allowed in part.
b) It is found that the appellant is entitled to a further amount of Rs.27,440/- (Rupees twenty seven thousand four hundred and forty only) in addition to the amounts already awarded by the Tribunal. Interest shall be payable on the entire amount at the rates already directed by the tribunal from the date of the petition.
(R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.749/05 6 M.A.C.A.No.749/05 7 R.BASANT &C.T.RAVIKUMAR, JJ.
.No. of 200
ORDER/JUDGMENT 06/02/2009