IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 MACA.No. 890 of 2004(C) -------------------------------- (AGAINST THE AWARD DATED 7.11.2003 IN OPMV.886/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY) .................... APPELLANT(S): /PETITIONER: ----------------------------------------- K.DINESAN, S/O.A.O.SANKARA KURUP (LATE) 35 YEARS, PANCHAMI, P.O.CHENDAYAD, PANOOR, THALASSERI TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.SHEJI P.ABRAHAM RESPONDENT(S): /RESPONDENTS: -------------------------------------------------- 1. M.ABOOBACKER, S/O.MUHAMMED, TRIPANGOTTUR AMSOM, POILOOR DESOM, P.O.POILOOR, KANNUR DIST. 2. P.SAJEEVAN, S/O.CHANDU, 23 YEARS, KOLAVALLOOR AMSOM AND DESOM, P.O. KOLAVALLOOR. 3. UNITED INDIA INSURANCE COMPANY LTD., KANNUR, P.O. KANNUR. R3 BY ADV. SMT.K.C.BEENA . THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.890 of 2004-C ---------------------------------------------- Dated, this the 25th day of June, 2009 J U D G M E N T Joseph, J. Appellant is the petitioner in a petition filed under Section 166 of the Motor Vehicles Act. The Tribunal has awarded a total sum of Rs.1,60,560/- with interest at 9%. The date of accident was 21.9.1997. He was awarded Rs.1,02,429 towards medical expenses as covered by A5 series, Rs.6,750/- towards hospital expenses (bystander expenses), Rs.2,000/- towards transport expenses Rs.9,000/- towards loss of earning, Rs.17,000/- for pain and suffering, Rs.5,000/- for loss of amenities and Rs.18,360/- towards permanent disability. The appeal is directed against the quantum. 2. We heard the learned counsel for the appellant and learned counsel for the Insurance Company. 3. Learned counsel for the appellant would submit that the Tribunal has taken the income of the appellant as MACA 890/2004 -2- Rs.1,500/-. He would submit that there is evidence of Pw1 wherein he set up a claim of Rs.4,000/- per month. He is having an agency of ayurvedic pharmacy. Therefore, the learned counsel submits that the income of the appellant should have been definitely fixed at a higher level. He would further contend that the multiplier has been taken at 17 on the basis that the appellant was 30 years as on the date of the petition. He would point out that the date of birth of the appellant is 5.3.1968 and as on the date of the accident he has not completed 30 years and therefore the multiplier should have been 18. He would further contend that actually he was out of work for a period of nearly one year and the Tribunal has erred in awarding compensation towards loss of earning only for 6 months. Further, he would contend that the amount awarded towards pain and suffering is Rs.17,000/-. Lastly, he would submit that the amount awarded towards loss of amenities is also on the lower side being Rs.5,000/-. 4. Learned counsel for the respondent supported the award. 5. As far as the question of income is concerned MACA 890/2004 -3- having regard to the date of accident and the evidence we can safely fix it at Rs.1,800/- per month. On the said basis the appellant would be entitled to Rs.1,800/- more towards loss of earning. Further, we feel that having regard to the facts of the case the appellant should have been awarded Rs.3,600/- more towards loss of earning on the basis that he would have lost the earning for two months more and increased income which he would have received. No doubt, the Tribunal has found that his agency is terminated under a letter which would show that there is some default. Learned counsel for the appellant submits that the default is nothing but the after effect of the injuries which he has suffered in the accident. The appellant was in hospital for 44 days. The Tribunal has narrated the nature of the injuries. After having gone through the same we feel that the appellant should have been awarded a sum of Rs.25,000/- towards pain and suffering which means that the appellant is entitled Rs.8,000/- more under the said head. Further, on the basis that the multiplier is to be adopted with reference to the date of accident the multiplier fixed by the Tribunal is erroneous. The multiplier should not have been MACA 890/2004 -4- taken as 17 but at 18. This would mean that the appellant is entitled to Rs.23,328 instead of Rs.18,360/-. This would mean that the appellant is entitled to Rs.4,968/- which is rounded as Rs.5,000/-. We find merit in the contention of the appellant that he should have been awarded some more amount towards bystander expenses. We award a further lump sum of Rs.4,000/- more. Accordingly, the appellant would be entitled to a total sum of Rs.22,400/- which is rounded as Rs.22,000/-. Accordingly, the appeal is partly allowed and the appellant is allowed to realise Rs.22,000/- from the third respondent at 7.5 percent interest. The enhanced compensation will carry interest at 7.5 percent from the date of the petition till the date of realisation. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS