IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 MACA.No. 1496 of 2005() ----------------------- OPMV.175/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT/PETITIONER: ----------------------------------- RAJESH ALIAS RAJESH KUMAR, S/O. RAMACHANDRAN PILLAI, SREERAMA VILASOM, ANDOOR P.O., VALAKOM. BY ADV. SRI.MANOJ RAMASWAMY RESPONDENT(S): RESPONDENTS --------------- 1. ABDUL GAFOOR M., VILAYIL THEKKETHIL VEEDU, PERUMPUZHA P.O., KOLLAM. 2. SADDIQUE, S/O. AMIRKANNU RAWTHER SIRAJA MANZIL, KADUVAPPARA, KOKKADU, CHAKKUVARAKKAL VILLAGE. 3. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, L.I.C. BUILDING CHINNAKKADA, KOLLAM. ADV. SRI.R.ARUN RAJ FOR R1 SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1496 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.175/2002 of Motor Accidents Claims Tribunal, Punalur challenges the judgment and award of the Tribunal dated January 5, 2005 awarding a compensation of Rs. 37,442/-/- 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 20 at the time of the accident and as an Auto Electrician. He used to earn Rs. 4,000/- per month, according to him. On June 27, 2001 at about 7.45 p.m., the claimant was cycling along Pathanapuram-Kunnicodu road. When he reached at Manchalloor junction, he was knocked down by a motor cycle bearing Reg. No.KL/2/K/87 ridden by the second respondent. The claimant sustained serious injuries. According to the claimant, accident occurred M.A.C.A.No.1496/2005 2 due to the rash and negligent riding of the offending motor cycle by second respondent. First respondent as the owner, second respondent as the rider and third respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 1,75,000/-. 3. Respondents 1 and 2, the owner and rider of the offending motor cycle though entered appearance did not file any written statement. The third respondent the insurer of the offending motor cycle filed a written statement admitting the policy and further contending that the accident occurred due to the negligence on the part of the claimant. 4. Claimant was examined as PW1 and Exts.A1 to A13 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent riding of the offending motor cycle by second respondent and awarded a compensation of Rs. 37,442/-. The claimant has now come up in appeal challenging the quantum of compensation M.A.C.A.No.1496/2005 3 awarded 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 on the part of the second 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 claimant sustained the following injuries as revealed from Ext.A6, the discharge summary issued from Medical College Hospital, Thiruvananthapuram. Periorbital oedema, right infraorbital margin tenderness, tenderness of crepitus over nasal bone and head injury are noted. C.T. scan of head showed pneumocephalus fractures involving anterior and posterolateral wall of right anterior, both pterygoid plates, right lamina papyracea frontal sinus roof, fracture involving naso maxillary strut. 8. He was admitted in the hospital on 21/06/2001 and was discharged on 5-07-2001. Ext.A7 is the discharge card issued from the M.A.C.A.No.1496/2005 4 said hospital. It shows that he was again admitted on 15-07-2001 and was discharged on 18-07-2001. Ext.A8 is the referral card. Ext.A9 is the disability certificate. It shows that he has a permanent disability of 10%. Ext.A12 is the CT scan report. 9. The claimant is now having the following disabilities as revealed from Ext.A9, a copy of the wound certificate, which is produced for our perusal : Recurrent attacks of headache, recurrent attacks of vertigo repeated attacks of nasal obstruction and difficulty to concentrate in his profession as an Auto Electrician. 10. The Tribunal awarded a total compensation of Rs. 37,442/-. The break up of the compensation awarded is as under : Loss of earning - Rs. 2,000/- Transport to hospital -Rs. 1,000/- Extra nourishment -Rs. 1,000/- Damage to clothing -Rs. 400/- Cost of medicines -Rs. 4, 402/- Bystander expenses -Rs. 600/- Pain and suffering -Rs. 5,000/- Disability caused -Rs. 23,040/- ---------------- Total -Rs. 37,442/- =========== M.A.C.A.No.1496/2005 5 11. Counsel for the claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and adopted a multiplier of 16 as he was aged 20 at the time of the accident and took the percentage of disability as 6% and awarded a compensation of Rs. 23,040/- for the disability caused. Ext.A13 is the copy of the trade certificate showing that he has passed the Auto Electrician course trade. Taking into consideration this aspect, we feel that the monthly income of the claimant can be reasonably fixed at 2,500/-. Ext.A9, the certificate of disability shows that he has now a permanent disability of 10% as he is now suffering from head-ache, loss of memory, diminution of vision etc. As PW1 he has also testified to that effect. Therefore, we feel that percentage of disability shows as 10% in Ext.A9 can be accepted. The multiplier adopted as 16 by the Tribunal is not seriously challenged. Thus, calculated for the disability caused, the claimant is entitled to a compensation of Rs. 48,000/- ( 10% x 2500 x 12 x 16). Thus on this count, the claimant is entitled to an additional compensation of Rs. 24,960/-. M.A.C.A.No.1496/2005 6 12. For the pain and suffering endured by the claimant, Rs. 5,000/- was awarded by the Tribunal which appears to be very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. 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 are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs. 29,960/-. He is entitled to interest @ 7% per annum. For the compensation already awarded, he is entitled to interest at the same rate. 14. There is another aspect in the matter. Though notice was issued to the respondents as early as on 5/9/2005, the claimant did not pay process for issuing notice. Only in 2010, he paid process fee. Therefore, during the period from 05/09/2005 to 24/03/2010, the claimant is not entitled to interest. The third respondent being the insurer of the offending vehicle shall deposit the amount before the M.A.C.A.No.1496/2005 7 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 sv. In paragraph 14 of the judgment dated 07/04/2010 in M.A.C.A.No.1496/2005, the sentences reading “ Only in 2010, he paid process fee. Therefore, during the period from 05/09/2005 to 24/03/2010, the claimant is not entitled to interest” are corrected and substituted as “ Only on 05/10/2006 he paid process fee. Therefore during the period from 05/09/2005 to 05/10/2006 the claimant is not entitled to interest” as per order dated 21/07/2010 in R.P.561/2010 in M.A.C.A.1496/2005. Sd/- Registrar ( Judicial) M.A.C.A.No.1496/2005 8 M.A.C.A.No.1496/2005 9