Permanent disability claims must be substantiated by clear evidence; actual loss of earnings during hospitalization can warrant additional compensation.

JUDGMENT

No representation for the appellant on the second consecutive posting also.

Appellant called, absent. This appeal is dismissed.

16.10.2012 SD/-K.HEMA, JUDGE SD/-P.S.GOPINATHAN, JUDGE /TRUE COPY/

P.S. TO JUDGE K.Hema & P.S.Gopinathan, JJ. ----------------------------------

M.A.C.A.No.2007 of 2006 ----------------------------------

Dated this the 28th day of November, 2012

JUDGMENT

Hema, J.

The appellant filed an application under Section 166 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal ('the Tribunal' for short) claiming compensation of ` 2,50,000/- from respondents 1 to 3 for the injuries sustained by him in a motor accident. After trial, learned Tribunal on assessment of evidence on record awarded ` 35,047/- as compensation to the appellant. Third respondent was directed to produce the cheque for the said amount. The quantum of the said award is challenged in this appeal.

2. According to appellant, on 31.12.2000 while he was travelling as a pillion rider in a motor cycle ridden by second respondent on a public road, the motor cycle capsized as a result of which he sustained injuries. First respondent is the owner of the vehicle and third respondent is the insurer.

MACA 2007/06 2

3. First and second respondents remained ex parte before the Tribunal. Third respondent filed written statement admitting the insurance policy, but denied the allegation of negligence on the part of second respondent. Appellant examined himself as PW1 and also marked Exts.A1 to A12. No evidence was adduced on the side of respondents. Learned Tribunal found that the accident occurred due to negligent driving of the motor cycle by second respondent. On an evaluation of evidence adduced, learned Tribunal awarded ` 35,047/- as compensation under various heads.

4. Heard both sides. The only point for consideration is whether appellant is entitled for any additional compensation. Learned counsel for appellant argued that appellant is entitled for compensation under the head permanent disability in the light of the certificate issued by the doctor, which is marked as Ext.A9. Learned Tribunal held that said certificate is not proved and no compensation can be awarded towards permanent disability. Learned counsel for appellant also pointed out that as per Ext.A9 MACA 2007/06 3 disability is fixed at 18%.

5. On going through the oral evidence of PW1 and Ext.A9, we cannot find fault with learned Tribunal for the finding entered into in respect of permanent disability. PW1, while examined in court, did not state anything with respect to disability which is caused to him. He did not say that he has any difficulty because of the injuries sustained to him. It is also interesting to note that in Ext.A9 what is recorded is as follows:

“Considering the age/occupation and restriction of movement of both hands, he may be given a permanent partial disability of 18% as per Mc Bribe Scale.”

A reading of Ext.A9 would show that doctor has not assessed or certified that permanent disability is caused to the appellant. Instead, it is stated therein that the injured “may be given” a permanent disability of 18%. The oral evidence also does not disclose that injured has any permanent disability.

6. However, it was pointed out by learned counsel for contesting respondent that towards loss of earning power `

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24,000/- was awarded to the appellant, even though no amount is awarded towards permanent disability. In such circumstances, we do not think that appellant is entitled for any additional compensation towards permanent disability.

7. Learned Tribunal fixed ` 4,000/- as the monthly income of appellant for assessing compensation towards loss of earning, as seen from paragraph 11 of the award. ` 4,000/- is allowed towards loss of earning. It appears that the amount awarded is for the loss of actual earning during the period when he was hospitalised and he was not in a position to use his hands because of the injuries sustained. It was pointed out by learn