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 13TH JULY 2010 / 22ND ASHADHA 1932 MACA.No. 1011 of 2005() ----------------------- OPMV.1147/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- V.G.AJIKUMAR, S/O.GOVINDAN NAIR, VADESSERY HOUSE, KUNJUTTUKARA, EDATHALA P.O. BY ADV. SRI.K.VINOD CHANDRAN RESPONDENT(S): RESPONDENTS -------------------------- 1. BIJU, S/O.VARGHESE, IRATHARA HOUSE, NANTHIYATTUKUNNAM, NORTH PARAVOOR. 2. P.M.KABEER, POOTHUKODATH HOUSE, CHENGAMANADU, ALUVA. 3. M/S.ORIENTAL INSURANCE COMPANY LTD., ALUVA. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1011 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th 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.1147/1999 of Motor Accidents Claims Tribunal, Perumbavoor challenges the judgment and award of the Tribunal dated November 8, 2004 awarding a compensation of Rs. 43,550/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these : On April 3, 1999, the claimant was riding his tempo van bearing Reg.No.KL-7B-7257 along Athani-Thonniyakavu road. When he reached at Nanthyattukunnam at about 5.30 p.m., an Autorickshaw bearing Reg.No.KDE-6586 driven by the first respondent came at a high speed and dashed against the tempo of the claimant. As a result of the impact, the rear view mirror of the tempo van broke and pierced into his right eye causing serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending M.A.C.A.No.1011/2005 2 autorickshaw by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending autorickshaw 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 driver and owner of the offending autorickshaw remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending autorickshaw filed a written statement admitting the policy and further contended that there was also negligence on the part of the claimant. 4. Exts.A1 to A12 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending autorickshaw by first respondent and awarded a compensation of Rs. 43,550/- with interest @ 9% 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. M.A.C.A.No.1011/2005 3 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 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 claimant sustained the following injuries as revealed from Ext.A4, copy of the wound certificate issued from Little Flower Hospital, Angamaly : Penetrating injury to right eye, corneal tear right eye, oedema eye lids. 8. Ext.A7 is the discharge summary issued from the hospital. Ext.A8 is the Medical Certificate issued from the said hospital. Ext.A9 is the reference letter dated 26-5-1999 issued by one Dr.K.E.Eppan addressing Sankara Nethralaya, an Eye Hospital at Madras. Ext.A10 is the Medical Certificate issued by Medical Officer of Aravind Eye Hospital, Anna Nagar, Madurai which shows that claimant has undergone left eye cataract extraction with IOL implantation. 9. The Tribunal awarded a total compensation of Rs.43,550/-. M.A.C.A.No.1011/2005 4 The break up of the compensation awarded is as under : Pain and suffering - Rs. 12,000/- Loss of earnings - Rs, 3,600/- Damage to clothing - Rs. 300/- Transportation exp. - Rs. 2,000/- Medical bills - Rs. 8,650/- Extra nourishment - Rs. 2,000/- Disability, discomforts & loss of amenities in life - Rs. 15,000/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. Further he has challenged the finding of the Tribunal fixing his monthly income as Rs. 1800/- 11. The Tribunal has awarded Rs. 15,000/- for the disability caused and for loss of amenities and enjoyment in life. The vision of the right eye of the claimant is affected. Therefore, we feel that a compensation of Rs. 75,000/- would be reasonable for the disability caused and for loss of amenities and enjoyment in life. Thus on this count, the claimant is entitled to an additional compensation of Rs. 60,000/-. 12. The Tribunal fixed the monthly income of the claimant as Rs. 1800/- . The claimant was a driver by profession. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2500/-. M.A.C.A.No.1011/2005 5 The Tribunal awarded Rs. 3,600/- towards loss of earnings for two months @ Rs. 1800/- per month. As we have fixed the monthly income of the claimant as Rs. 2,500/-, he is entitled to a compensation of Rs. 5,000/- towards loss of earnings for two months. Thus on this count, the claimant is entitled to an additional compensation of Rs. 1,400/-. 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 entitled to an additional compensation of Rs. 61,400/-. 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. M.A.C.A.No.1011/2005 6 M.A.C.A.No.1011/2005 7