IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 MACA.No. 905 of 2008() -------------------------------- OPMV.1565/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER ------------------------------------ GEORGE, S/O.VAKKACHAN, VETTIKATTIL HOUSE, EASTERN SIDE OF ST.MARY'S CHURCH, CHEMPUMUKKU, VAZHAKKAL, KAKKANAD. BY ADV. SRI.K.A.SEBASTIAN SRI.P.A.BAHULEYAN RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. THE MANAGING DIRECTOR, SOORYANELLI PLANTATIONS PRIVATE LIMITED, ST.ALBERT'S LANE, KOCHI-18. 2. JEROME, S/O.SEBASTIAN, MATTUMMEL HOUSE, DESHIYA KAVALA, VAZHAKKALA. 3. NATIONAL INSURANCE CO.LTD., MTPC CELL, REGIONAL OFFICE, MUTHOOT TOWER, M.G.ROAD, ERNAKULAM. 4. THE NEW INDIA ASSURANCE COMPANY LTD., MTPC CELL, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM. ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI JJ. --------------------------------------------------- M.A.C.A NO. 905 OF 2008 ---------------------------------- DATED THIS THE 31TH DAY OF MAY, 2010 JUDGMENT Barkath Ali J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV)No. 1565/99 on the file of the Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated 2-6-2007 awarding a compensation of Rs. 1,01,770/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 38 at the time of the accident and was earning Rs. 8,000/- per month by running a workshop. On 1.5.1999 at about 9.30 p.m. the claimant was riding on a motor cycle bearing registration No. KET 1598 along Kakkanad– Palarivattom Road. When he reached near Chembumukku another motor cycle bearing registration number KL7/H-8344 came at a high speed behind and dashed against the motor M.A.C.A NO. 905 OF 2008 2 cycle of the claimant. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the rash and negligent riding of the motor cycle bearing registration No. KL7/H-8344 by the 2nd respondent. The 1st respondent as the owner, 2nd respondent as the rider and 3rd respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. 3. The Claimant claimed a total compensation of Rs. 3 lakhs. 4th respondent is the insurer of the motor cycle of the claimant. 4. Respondents 1 and 2, the owner and rider of the offending motor cycle remained absent and was set ex-parte by the Tribunal. The 3rd respondent, insurer of the offending motor cycle filed a written statement admitting the policy and further contending that there was no negligence on the part of M.A.C.A NO. 905 OF 2008 3 the claimant. The 4th respondent, the insurer of the motor cycle of the claimant filed a written statement admitting the policy but contended that the accident occurred due to the negligence on the part of the 2nd respondent. 5. Exts. A1 to A11 were marked by the Tribunal on the side of the claimant. No evidence was adduced by the contesting respondents 3 and 4. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 1,01,77/- with interest @ 7.5% per annum from the date of petition till realization. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. The claimant sustained the following injuries as revealed from Ext.A8, copy of the wound certificate issued by the Ernakualm Medical Centre hospital; Abrasions on right leg and fracture of both bones right leg. M.A.C.A NO. 905 OF 2008 4 7. Ext.A9, the treatment certificate shows that interlocking nailing, fasciotomy and skin grafting were done. He was admitted on 1.5.1999 and was discharged on 29.5.1999. Ext.A7 is the series of photographs showing the present stage of the fractured leg. 8. The Tribunal awarded a total compensation of Rs. 1,01,770/-. The break up of the award amount is as under: Transportation, hospitalization, ) attendant expenses, extra nourishment )Rs. 3,000/- & damage to clothings. ) Medical expenses Rs. 45,770/- Loss of earnings Rs. 10,000/- Pain and suffering Rs. 20,000/- For discomforts, inconveniences & Rs. 15,000/- loss of amenities. Discolouration causing disfiguration Rs. 8,000/- --------------- Total: Rs.1,01,770/- ============ 9. Counsel for the claimant pointed out that no compensation was awarded for the disability caused. He has sought enhancement of compensation for pain and suffering, M.A.C.A NO. 905 OF 2008 5 loss of amenities and for disfigurement. Ext.A11,the certificate issued by the Medical Board attached to the General Hospital, Ernakulam shows that claimant has now a permanent disability of 14% and he has restriction in knee and ankle movements. The Tribunal took the monthly income of the claimant as Rs. 2,500/- . As the petitioner did not examine himself before the Tribunal, no compensation was awarded for the disability caused. But the certificate Ext.A11 shows that the claimant has now some permanent disability. Taking into consideration the disability mentioned in Ext.A11, we feel that percentage of disability can be assessed at 10%. As according to the claimant, he was running a workshop and aged 38, we feel that the monthly income of the claimant can be reasonably fixed as Rs. 3,000/- and 16 would be proper multiplier as per the 2nd schedule of Motor Vehicles Act. Thus calculating for the disability caused, the claimant is entitled to a compensation of M.A.C.A NO. 905 OF 2008 6 Rs. 57,600/-. 10. The Tribunal awarded Rs. 10,000/- for loss of earnings ie. for 4 months at the rate of Rs. 2,500/- per month. We have fixed the monthly income as Rs. 3,000/-. Therefore, on this count, he is entitled to a compensation of Rs. 12,000/- for 4 months at the rate of Rs. 3,000/- per month. As regards compensation awarded under other heads, we find the same to be reasonable and that therefore, we are not disturbing the same. 11. In the result, the claimant is entitled to an additional compensation of Rs. 59,600/-. He is entitled to interest @ 8% per annum from the date of award till realization and proportionate cost. The 3rd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above M.A.C.A NO. 905 OF 2008 7 extent. The appeal is disposed of as found above. A.K. BASHEER (JUDGE) P.Q. BARKATH ALI (JUDGE) pkk