IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 MACA.No. 906 of 2004() ---------------------- OPMV.200/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETTIONER --------------------------------- GOPALAN P.O. S/O. KANNAN, 40 YEARS, RESIDING AT PALIATH VELAPPU ANCHAMPEEDIKA P.O., MATTAMMAL VIA. KANNUR DISTRICT BY ADV. SRI.T.K.KOSHY SMT.RAJESWARI K. SRI.HARIDAS THAIKKANDY RESPONDENT(S): RESPONDENTS -------------------------- 1. K.NAFEESA, W/O. KUNHAMMED HAJI, KANDETHU HOUSE, P.O.KANNAPURAM, KANNUR DISTRICT. 2. V.P.RAJESH KUMAR S/O. C.T.KRISHNAN, VADAKKEPURAYIL, THAVAN P.O., KANNUR DISTRICT. 3. THE MANAGER, UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, BROTHERS COMPLES, THALASSERY ROAD, KANNUR. ADV. SRI.P.U.SHAILAJAN FOR R2 SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.906 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.200/1997 of Motor Accidents Claims Tribunal, Thalassery challenges the judgment and award of the Tribunal dated April 3, 2003 awarding a compensation of Rs. 1,26,700/- ( mistakenly noted it as Rs.1,41,700/-) 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 a timber merchant and used to earn Rs.5,000/- per month, according to him. On May 28,1996 at about 11.a.m., the claimant was riding his motor cycle from Payangadi to Kannur. When he reached at Puthiyakkavu, a limited stop bus bearing Reg.No.K.R.N. 5040 driven by the second respondent came at a high speed and dashed against the motor cycle of the claimant. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash MACA.No.906/2004 2 and negligent driving of the offending bus by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and driver of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending bus filed a written statement admitting the policy, but contended that there was also negligence on the part of the claimant. 4. This O.P. was jointly tried along with another O.P. filed by the pillion rider of the motor cycle and a common award was passed. PWs 1 to 3 were examined and Exts.A1 to A16 and Exts.X1 and X2 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 driving of the offending bus by second respondent and awarded a compensation of Rs. 1,26,700/- ( mistakenly noted it as Rs. 1,41,700/-) with interest @ 9% per annum MACA.No.906/2004 3 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 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.A2, the O.P. Ticket, Ext.A3, the disability certificate and Ext.A7, the discharge card issued from the hospital. 1. Comminuted fracture of lower 3rd right femur 2. Compound fracture of both bones of right leg. Ext.X1 is the case sheet of the claimant. He underwent surgery for right leg in the form of lilizarov factor and interlocking nailing was done. He had a disability of 30%. MACA.No.906/2004 4 8. The Tribunal awarded a total compensation of Rs.1,26,700/- ( mistakenly noted it as Rs.1,41,700/-). The break up of the compensation awarded is as under : Transportation - Rs. 3,000/- Bystanders expenses - Rs.4,350/- Extra nourishment - Rs.1,500/- Loss of earnings - Rs. 15,000/- Treatment expenses - Rs. 49,600/- Disability - Rs. 38,250/- (mistakenly noted as Rs. 28,250) Loss of amenities and enjoyment of life - Rs. 15,000/- 9. Counsel for the claimant sought enhancement of compensation for the pain and suffering endured and for the disability caused. 10. The Tribunal took the monthly income of the claimant as Rs.1,250/- and adopted a multiplier of 17 and took the percentage of disability as 15% and awarded Rs.38,250/- ( mistakenly noted as Rs. 28,350/-) for the disability caused. The claimant as PW1 testified that he was a timber merchant earning Rs. 5,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. Ext.A3, the MACA.No.906/2004 5 disability certificate issued by the doctors of the City Hospital Research & Diagnostic Centre, Mangalore show that claimant has suffered a disability of 30% as he has residual shortening of 2cm. of his right lower limb and stiffness of right ankle. One of the doctors who issued Ext.A3 was examined as PW3 before the Tribunal. Therefore, we feel that the percentage of disability of the claimant can be reasonably fixed at 20%. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus calculated for the disability caused and for consequential loss of earning power, the claimant is entitled to a compensation of Rs. 1,02,000/-. Thus on this count the claimant is entitled to an additional compensation of Rs. 63750/-. 11. The Tribunal awarded a compensation of Rs. 15,000/- for loss of earnings i.e. for one year @ 1500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,500/-, towards loss of earnings, he is entitled to a compensation of Rs.30,000/- i.e. for one year @ Rs. 2,500/- per month. 12. No compensation was awarded for the pain and suffering endured by the claimant. Taking into consideration the nature of the MACA.No.906/2004 6 injury sustained by the claimant, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. In the result, the compensation awarded by the Tribunal is corrected as Rs. 1,26,700/-. The claimant is entitled to an additional compensation of Rs.98,750/-. He is entitled to interest @ 9% 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 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.906/2004 7 MACA.No.906/2004 8