IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 MFA.No. 438 of 2002(D) ---------------------------------- OPMV.91/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT: 3RD RESPONDENT --------------------- DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE,THIRUVANANTHAPURAM BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: PETITIONER & RESPONDENTS 1 AND ------------------------- 1. T.PETER, S/O. THANKAYYAN,PUTHUVAL PUTHEN VEEDU, PUNNAMOODU,KALLIYOOR POST, THIRUVANANTHAPURAM. 2. K.A.MUSTHAFA,VELLUMPARAMBIL, VEERKUNNAM,ALAPPUZHA. 3. K.RAMACHANDRAN S/O.A.KRISHNAN,THERUMALA VILA VEEDU, KALIYIKKA VILA,PARASSALA, THIRUVANANTHAPURAM. ADV. SRI.R.T.PRADEEP FOR R1 SRI.R.NARENDRAN NAIR FOR R1 SRI.A.MOHAMMED FOR R2 SRI.M.SAJJAD FOR R2 SRI.M.MUHAMMED SHAFI FOR R2 SRI.V.Y.JOSEPH FOR R2 SRI.A.V.TELLUS MONVIL FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2533/2002 IN M.F.A. NO.438/2002 DISMISSED 28.08.2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P. JOSEPH /TRUE COPY/ P.S. TO JUDGE tss J.B. Koshy & Thomas P. Joseph, JJ. -------------------------------------- M.F.A. No.438 of 2002 --------------------------------------- Dated this the 28th day of August, 2008 Judgment Koshy,J. First respondent/Claimant sustained injuries in a motor accident on 15.6.1995. He claimed a compensation of Rupees Ten Lakhs (limited to Rupees Eight Lakhs). The Tribunal awarded a compensation of Rs.5,50,000/- and directed the third respondent insurance company (before the Tribunal) to deposit the same. Third respondent insurance company filed this appeal mainly on two grounds. First ground is that the claimant was a passenger in a goods vehicle and, therefore, he is not entitled to claim compensation. Secondly, it is contended that quantum of compensation is very high. It has come out in evidence that the claimant was a wholesale fish merchant and he was travelling with his goods. The accident occurred after amendment of the Motor Vehicles Act with effect from 14.11.1994 by Amendment Act No.54 of 1994. Thereafter, insurance company is liable to pay compensation even in an 'Act Policy' to owner of the goods who is M.F.A.No.438/2002 2 travelling in the goods' vehicle. Therefore, insurance company cannot shift the liability in this case. 2. Second question to be considered is the quantum of compensation. It is submitted by the counsel that no section 170 application was received and, therefore, appeal is not maintainable. But, we are of the view that very high compensation was granted. Even if an appeal is not maintainable, it can be looked into under article 227 of the Constitution as this Court has got supervisory control over all the Tribunals in the State. The Tribunal has fixed Rs.6,000/- as the monthly income. We are of the view that if Rs.6,000/- was his monthly income, he would have been an income- tax payee in 1996, but, merely because Rs.6,000/- was claimed as his monthly income and that was accepted by the Tribunal, that was a very high amount. Since it is submitted that he was a fish vendor and was travelling with fish in the lorry, we fix Rs.4,500/- as the monthly income. 3. With regard to the injuries, Ext.A13 treatment certificate shows the following injuries: "1. Compound comminuted fracture left tibia and fibula - External fixation was done in Christian Mission Hospital, Madurai. M.F.A.No.438/2002 3 2. Tendo achill is injury right side repaired in Christian Mission Hospital, Madurai. 3. Traumatic amputation of distal 1/3 of proximal phalanx of right little toe. 4. Fracture medial and lateral malleolus of right leg. 5. Fracture Naviular bone right foot. 6. Fracture middle cuniform right side. 7. Fracture base of 1,3,4,5 meta tarsals right side. 8. Fracture neck of 2,3,4 meta tarsala, right side. 9. Fracture base of proximal phalanx 3rd toe, right side. 10. Fracture Nasal bone." Ext.A21 disability certificate shows that there is 21% disability. It shows the following disabilities: "1. Traumatic amputation of right Vth toe. 2. Partial Ankylosis of left knee and ankle. 3. Small and deformed right heel. 4. Partial ankylosis right mid foot joints." The Tribunal accepted the above certificate. We see no ground the change the same. 17 was taken as the multiplier as he was aged M.F.A.No.438/2002 4 only 37 taking guidance from the second schedule. If that be so, compensation payable will be Rs.4500 x 12 x 17 x 21 = 100 Rs.1,92,780/-. The Tribunal has awarded Rs.2,57,040/-. So, Rs.64,260/- has to be deducted from the compensation awarded for permanent disability. The Tribunal has awarded Rs.1,28,520/- towards loss of amenities in life after awarding Rs.75,000/- for pain and suffering. We are of the opinion that only Rs.50,000/- need be given for loss of amenities. Excess amount under this head will be Rs.78,520/-. Therefore, the Tribunal has awarded an amount of Rs.1,42,780/- more than that is payable. It is contended that compensation granted under other heads including pain and suffering are on the high side, we are not reducing any amount especially considering the fact that permission under section 170 was not granted. Therefore, total compensation payable will be Rs.4,07,220/-. Award was passed in the year 2000. Considering the rate of interest awardable at that time, we reduce the rate of interest from 12% to 9%. Therefore, total compensation payable will be Rs.4,07,220/- with 9% interest from the date of application till its deposit. Appellant insurance company is directed to deposit the same after deducting the amount already deposited. On M.F.A.No.438/2002 5 deposit of the amount, first respondent is allowed to withdraw the same. Appeal is allowed partly. J.B.Koshy Judge Thomas P. Joseph Judge vaa M.F.A.No.438/2002 6 J.B. KOSHY AND THOMAS P.JOSEPH,JJ. ------------------------------------- M.F.A. No.438/2002 ------------------------------------- Judgment Dated:28th August, 2008