IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 MACA.No. 1194 of 2006() ----------------------- OPMV.350/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: ------------------------------------ K.SAINUDHEEN, S/O.KHADER AND AGED 25 YEARS, KODIYIL MOTTA HOUSE, NEDUVATT, NARATH.P.O, KANNUR DISTRICT. BY ADV. SRI.A.K.SRINIVASAN SRI.A.S.BENOY RESPONDENT/RESPONDENTS: --------------------------------------------- 1. K.M.JOSE, S/O.K.J.MATHEW, KODUMATTATHIL HOUSE, KANAMVAYAL, P.O.CHERUPUZHA. 2. KUNHIPOYIL ANIL KUMAR (DIED), S/O.KARUNAKAREN, KUTTIATTOOR AMSOM DESOM, P.O.KUTTIATHOOR. 3. NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, MUNICIPAL BUS STAND, KANNUR. 4. KUNHIPOYIL PANKAJAKSHI, D/O.NARAYANAN, KUTTIATTOOR AMSOM DESOM, KARAMBU, P.O.KUTTIATTOOR. ADV. SRI.JOY GEORGE FOR R.3 SMT.PRAICY JOSEPH FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. No. 1194 OF 2006 --------------------------------------- DATED THIS THE 1st DAY OF APRIL, 2011 J U D G M E N T Barkath Ali, J. Appellant is the claimant in O.P.(MV)No. 350/1999 on the file of Motor Accidents Claims Tribunal, Thalassery. In this appeal, he challenges the judgment and award of the Tribunal dated October 1, 2005 awarding a compensation of ` 1,42,600/- to the claimant for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on August 18,1998 at 11.15 p.m. near Keycee petrol pump at Valapattanam in Thalassery. The claimant and others were travelling in an autorickshaw bearing registration No. KL-13/3870 from Chirakkal to Pappinisseri Visha Chikilsalayam. At that time a jeep bearing registration No. KL-10/B 7754 driven by the 2nd respondent came at a high speed and dashed against the autorickshaw. The claimant sustained serious injuries. Alleging negligence against the 2nd respondent, the driver of the offending jeep the claimant filed the O.P. before the Tribunal claiming a compensation of ` 6,00,000/-. M.A.C.A. No. 1194 OF 2006 2 3. Respondents 1 and 2, the owner and driver of the offending jeep filed a joint written statement admitting the accident but denied the liability. The 3rd respondent, the insurer of the offending jeep filed a written statement admitting the policy of the offending jeep. During the pendency of the petition, the 2nd respondent died. His legal heir was impleaded as supplemental 4th respondent in the O.P. 4. This O.P. was jointly tried along with other O.Ps. filed by other injured persons in the accident and the legal heirs of the deceased persons in the accident and a common award was passed. P.Ws. 1 to 4 were examined on the side of the claimants and Exts. A1 to A38 series were marked. Ext. B1 was marked on the side of the respondent. Exts. X1 to X5 were also marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence of the 2nd respondent and awarded a compensation of ` 1,42,600/- with interest at the rate of 9% per annum from the date of petition till the date of award and thereafter at the rate of 6% per annum till realization on ` 1,39,600/- and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded M.A.C.A. No. 1194 OF 2006 3 by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the 2nd respondent is not seriously challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant was examined as PW1 before Tribunal. He sustained the following injuries in the accident: “1. Fracture ribs 2. Abrasion over abdomen-intra archanoid haemorrhage 3. Swelling over left thigh-fracture left femur 4. Lacerated wound over left leg-fracture left tibia 5. Lacerated wound over left foot 6. Communited fracture of 1/3 of right femur, and communited fracture of 1/3 of left femur 7. Communited compund fracture 1/3 fibia left + fracture ulnar left side + foot drop on left side.” 8. The Tribunal awarded a total compensation of ` 1,42,600/-. the break up of the compensation amount awarded by the Tribunal is as under: M.A.C.A. No. 1194 OF 2006 4 Loss of earning : ` 9,000/- Transportation expense : ` 3,500/- including reviews Medical expense : `78,500/- including bills Bystanders expense : ` 16,200/- Extra nourishment : ` 3,000/- Pain and sufferings : ` 15,000/- Future medical expense : ` 3,000/- Loss of earning capacity :` 14,400/- (` 1500x12x16x5%) -------------------- Total : ` 1,42,600/- ======== 9. The counsel for the claimant sought enhancement of the compensation for the disability caused and on other heads: 10. The Tribunal took the monthly income of the claimant as ` 1500/-, took the percentage of disability as 5% and adopted a multiplier of 16 and awarded a compensation of ` 14,400/- for the disability caused to the claimant. The claimant was aged 19 at the time of the accident and as a building construction worker used to earn ` 3,000/- per month as testified by him. Taking into consideration the above aspect, we feel that his monthly income M.A.C.A. No. 1194 OF 2006 5 can be reasonably fixed at ` 2,500/-. In Ext.A7 certificate of disability issued by doctor, it is certified that he has a permanent disability of 25%. The doctor, who issued Ext.A7 was examined as PW4 and he testified to the same effect. In Ext.A7 it is stated that the claimant has bilateral secondary ostioarthrites of knees and shortening of left femur to 2 cms. He cannot walk and run and cannot climb steps at present. Taking into consideration the above disabilities caused to the claimant the 25% of disability assessed by the PW4 appears reasonable. The multiplier of 16 adopted by the Tribunal is not seriously challenged in this appeal. Thus calculated for the disability caused the claimant is entitled to a compensation of ` 1,20,000/- (`2500x12x16x25%). Thus, on this count, the claimant is entitled to an additional compensation of ` 1,05,600/- 11. The Tribunal awarded a compensation of ` 9,000/- for loss of earning ie. for 6 months at the rate of ` 1500/- per month. As we have fixed ` 2,500/- as monthly income of the claimant, the claimant is entitled to a compensation of ` 15,000/- towards loss of earnings ie. for 6 months @ ` 2,500/-. Thus, on this count, the claimant is entitled to an additional compensation of ` 6,000/-. M.A.C.A. No. 1194 OF 2006 6 12. The Tribunal awarded ` 15,000/-for pain and suffering endured. No compensation was seen awarded for loss of amenities and enjoyment of life. Taking into consideration the nature of injuries sustained by the claimant, we feel that a compensation of ` 30,000/- for pain and suffering endured and a compensation of ` 20,000/- for loss of amenities and enjoyment of life would be reasonable. Thus, the claimant is entitled to an additional compensation of `15,000/- for pain and suffering endured and ` 20,000 for loss of amenities and enjoyment of life. 13. The Tribunal awarded ` 3,000/- towards for future treatment expense as the petitioner has to undergo a surgery to remove implant, which appears to be very low. Considering the above aspect, we feel that a compensation of ` 25,000/- would be reasonable towards future treatment expense. Thus, on this count, the claimant is entitled to an additional compensation of ` 22,000/-. As regards, the compensation awarded under other heads, we find the same to be reasonable and we are not disturbing the same. 14. In the result, the appellant/claimant is found entitled to an additional compensation of `1,68,600/-. The Tribunal M.A.C.A. No. 1194 OF 2006 7 awarded interest only at 6% per annum which appears to be very low. The claimant is entitled to interest at the rate of 7.5% per annum on the compensation already awarded and also for the enhanced compensation from the date of petition till realization. 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 extent. The Appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE PKK