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 6TH AUGUST 2010 / 15TH SRAVANA 1932 MACA.No. 408 of 2004() ---------------------- OPMV.1375/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/PETITIONER ---------------------------------- P.CHANDRAN, S/O. PADMANABHAN, THUNDIL VEEDU, WARD NO.VI, AMBALAPUZHA PANCHAYATH, KAKKAZHAM MURI, AMBALAPUZHA VILLAGE, ALAPPUZHA. BY ADV. SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM SRI.MARTIN D.ALUMKARA RESPONDENT(S): RESPONDENTS -------------------------- 1. THIRU LEKSHMONA PILLAI, S/O. THIRU MUTHU IRALAPPA PILLAI, KANAKA SABAPTHI PILLAI STREET, TUTICORIN, TAMIL NADU. 2. XAVIER, S/O.ANTONY, DRIVER, BALAMURUKA BUS CO.LD., TUTICORIN, TAMIL NADU. 3. THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, ALAPPUZHA. 4. BASHEER, VRIKSHA VILASAM THOPPU, VANDANAM, ALAPPUZHA. ADV. SRI.P.VIJAYA BHANU FOR R4 SRI.M.GEORGE THOMAS FOR R4 SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 408 of 2004 ------------------------------------------------------ Dated: AUGUST 6, 2010 JUDGMENT Barkath Ali, J. The appellant is the claimant in OP(MV) 1375/1997 on the file of the Motor Accidents Claims Tribunal, Alleppey. He sustained the following injuries in a motor accident which occurred on December 26, 1995: “Open wound 5 cm x 4 cm in lower 1/3 of thigh (post part) Incised wound 5 cm in foot sutured Incised wound 3 cm in hand sutured Incised wound 2 cm in Rt eyelid Abrasions in Lt ear.” 2. The accident happened while he was travelling in a mini lorry bearing Regn.No.KEE-5358 from Alappuzha to Tuticorin which collided head on with a bus bearing Regn.No.TN-69/9559 on the Tuticorin - Thirunelveli road. Alleging negligence against the 2nd respondent, driver of the bus, he filed the OP claiming a compensation of Rs.5 lakhs against respondents 1 to 3, owner, driver and insurer of the offending bus. 3. Respondents 1 and 2, owner and driver of the bus, remained absent before the Tribunal. Respondent No. 3/Insurance Company filed a written statement admitting the policy and further contended that there was also negligence on the part of the driver of the mini lorry. The 4th respondent, insurer of the mini lorry, admitted the policy. 4. This OP was jointly tried along with other OPs. filed by the legal heirs of the deceased and the injured persons in the accident and a common award was passed. PWs.1 to 5 were examined and Exts.A1 to A35 were marked on the side of the claimants before the Tribunal. On the side of the contesting 3rd respondent, RW1 was examined and Ext.B1 was marked. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the 2nd respondent and awarded a total compensation of Rs.42,000/- with interest at the rate of 6% per annum from the date of petition till realisation and a cost of Rs.500/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard counsel for the appellant/claimant and 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 2nd 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 Tribunal awarded a total compensation of Rs.42,000/-. The break up of the compensation amount awarded is as under: loss of earning Rs.6000/- treatment, medicine etc. 8000/- pain and suffering 8000/- partial disability and loss of amenities 15000/- loss of earning power 5000/- 8. The Counsel for the claimant sought enhancement of the compensation awarded for the loss of disability caused and for loss of amenities and enjoyment of life. The Tribunal awarded a lumpsum compensation of Rs.15000/- for the disability caused and for loss of amenities and enjoyment of life and Rs.5000/- towards loss of earning power. Ext.A11 certificate of disability shows that the claimant has suffered a disability of 10%. As PW.2 the claimant has testified that he was an abkari employee earning Rs.3000/- per month. Taking into account the above aspect, we feel that his monthly income can be reasonably fixed at Rs.2000/- instead of Rs.1500/- fixed by the Tribunal. As he was aged 40 at the time of the accident, the proper multiplier that can be adopted in this case is 16. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.38,400/- (24000x16x10%). Thus on this count the claimant is entitled to an additional compensation of Rs.23400/-. 9. No separate compensation was awarded for loss of amenities and enjoyment of life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.10,000/- would be reasonable in this case. 10. There is another aspect in this case. Rs.5000/- was awarded by the Tribunal for the loss of earning power. As compensation was awarded for the disability caused, the claimant is not entitled to that compensation. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. Thus the claimant is entitled to an additional compensation of Rs.28400/-. The Tribunal awarded interest only @ 6% per annum which is very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and on the enhanced compensation and proportionate cost. 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 The following corrections are made in the judgment dated 6.8.2010 in M.A.C.A.408/2004: (i) The fourth sentence in paragraph 4 is corrected and substituted as follows : “ On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the driver of the mini lorry and awarded a total compensation of Rs.42,000/- with interest at the rate of 6% per annum from the date of petition till realisation and a cost of Rs. 500/-.” (ii) The second sentence in paragraph 6 is corrected and substituted as follows : “ “The finding of the Tribunal that the accident occurred due to negligence on the part of the driver of the mini lorry is not challenged in this appeal.” (iii) The penultimate sentence in paragraph 11 is corrected and substituted as follows : “The owner and driver of the mini lorry shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment.” Vide order dated 1.4.2011 in R.P.No.234/11 in M.A.C.A.No.408/2004. Sd/- Registrar ( Judicial) mt/-