IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 MACA.No. 1684 of 2006() ----------------------- OPMV.2131/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- BALANANDAN, AGED ABOUT 36 YEARS, S/O.RAJAN @ KUPPUNNI, ALINKAL HOUSE, NELLIPARAMBU, WADAKKANCHERRY, NOW RESIDING AT C/O.K.M.KUMARAN, KUNDIL HOUSE, OLLUKKARA P.O. THIRUVANIKKAVU, THRISSUR DISTRICT. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENTS/RESPONDENTS --------------- 1. MANIKYAN, S/O.KAITAL GAS AGENCIES, (BHARAT GAS AGENCY) NEAR MERCY COLLEGE, P.O.PALLIPPURAM, PALAKKAD.( DELETED) 2. K.S.JAYASIMHAN, S/O.C.SUBRAMANIAN, KONDUPURAMKALAM P.O. PALLIPPURAM, PALAKKAD. 3. M/S.NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, THRISSUR. FIRST RESPONDENT DELETED AT THE RISK OF THE APPELLANT VIDE ORDER DATED 1/12/2010 IN I.A.NO.3195/2010 ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1684 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.2131/2001 on the file of Motor Accidents Claims Tribunal, Thrissur. In this appeal he challenges the judgment and award of the Tribunal dated December 23,2005 awarding a compensation of Rs.6,59,500/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on June 15, 2001 at about 1.45.p.m. : Fracture of left femur, left tibia and neuro vascular left leg. 2. The accident happened while the claimant was riding a motor cycle bearing Reg.No.KL9/E 7070 along Wadakkanchery- Palakkad NH. When he reached in front of KMS petrol pump, the motor cycle dashed against a tempo van bearing Reg.No.KRP 2968 driven by first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under MACA.No.1684/2006 2 Section 166 of Motor Vehicles Act claiming a compensation of Rs. 15,00,000/-. 3. Respondents 1 and 2, the driver and the owner of the offending vehicle remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement admitting the policy. 4. Pws 1 to 3 were examined and Exts.A1 to A20 and Ext.X1 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending tempo van by first respondent and awarded a compensation of Rs.6,59,500/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal MACA.No.1684/2006 3 that the accident occurred due to the negligence on the part of the first respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The Tribunal awarded a total compensation of Rs.6,59,500/-. The break up of the compensation amount awarded is as under: Loss of earnings - Rs. 25,000/- Transportation - Rs. 30,000/- Damage to clothing - Rs. 500/- Extra nourishment - Rs. 2,000/- Treatment expenses - Rs.3,95,000/- Bystander expenses - Rs. 5,000/- Future treatment - Rs. 50,000/- Pain and suffering - Rs. 25,000/- Disability - Rs. 1,02,000/- Disfigurement - Rs. 10,000/- Loss of amenities - Rs. 15,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as Rs.2,500/- and took the percentage of disability as 20% and adopted a MACA.No.1684/2006 4 multiplier of 17 and awarded Rs. 1,02,000/- for the disability caused. According to the claimant, he was conducting a hotel earning Rs.4,500/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. The Medical Board has assessed his disability at 40% as seen from Ext.X1 certificate of disability issued by the Medical Board. The claimant has now non-healing ulcer, stiffness, angle 90, stiffness knee at 40 flexion and shortening of lower limb by 10 cm., ankylosis. The Tribunal has considered the disability of the right knee of the claimant. Therefore, the Tribunal is perfectly justified in taking the whole body disability at 20%. The multiplier adopted by the Tribunal as 17 appears reasonable as the claimant was aged 30 at the time of the accident. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 1,22,400/- ( 20% x 3000x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.20,400/-. 10. The Tribunal awarded Rs.15,000/- for loss of amenities and enjoyment in life and Rs.25,000/- for pain and suffering endured. MACA.No.1684/2006 5 Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 25,000/- for loss of amenities and enjoyment in life and Rs.35,000/- for pain and suffering endured would be reasonable. 11. There is another aspect in this case. The Tribunal awarded Rs. 25,000/- towards loss of earnings for 10 months @ Rs. 2,500/- per month. As we have fixed the monthly income of the claimant as Rs. 3,000/-, he is entitled to a compensation of Rs. 30,000/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 5,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 45,400/-. He is entitled to interest @ 7% per annum from the date of petition till realisation and proportionate cost. The third 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 MACA.No.1684/2006 6 is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1684/2006 7