IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 MACA.No. 1232 of 2007(A) ---------------------------------- OPMV.400/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S):PETITIONER IN OP(MV) ------------------------------------------------------- VIJAYAN NAIR, S/O.LATE KRISHNAN NAIR, VALIYAPARAMBIL @ KOCHUPARAMBIL HOUSE, RESIDING AT IRRIGATION QUARTERS ROAD, CHALAKUDY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS IN OP(MV) ---------------------------------------------------------------- 1. P.RADHAMMA, W/O.THADATHIL MURALEEDHARAN, KAITHAPARAMBU P.O., ENATHUR, ADOOR. 2. RATNAKUMAR, S/O.PUTHENVEEDU (CHARIVILA) DIVAKARAN, KAITHAPARAMBU P.O., ENATHUR, ADOOR. 3. MANAGER, NEW INDIA ASSURANCE CO.LTD., KAYAMKULAM. ADV. SRI.V.G.ARUN FOR R1 & R2 SRI.T.R.HARIKUMAR FOR R1 & R2 SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.1232 of 2007-A ---------------------------------------------- Dated, this the 28th day of August, 2009 J U D G M E N T K.M.Joseph, J. Appellant suffered injuries in an accident on 5.8.2001. Aggrieved by the inadequacy of compensation the appellant is before us. We heard the learned counsel for the appellant and learned counsel for the insurance company. 2. In this case the appellant was driving a motor cycle from west to east. According to the appellant there were two vehicles in front of him. Along with them the appellant was crossing at the eastern end and a car driven by the 2nd respondent came and dashed against the vehicle. The Tribunal found the appellant and the 2nd respondent equally negligent and fixed negligence at 50:50. The Tribunal determined compensation at Rs.76,850/- and awarded 50 percent of the same ie Rs.38,425/-. The break up is given as under: MACA 1232/2007 -2- 1. Cost of extra nourishment and Rs. wages to attendants. 800.00 2. Loss of earnings 56,210.00 3. Transportation charges 200.00 4. Pain and suffering 8,000.00 5. Loss of amenities and happiness in life 3,000.00 6. Permanent disability 8,640.00 ---------------- Total 76,850.00 ----------------- 3. Learned counsel for the appellant would submit that in computation of disability the Tribunal has erred in taking the post retirement income at Rs.1,500/-. He would further submit that the doctor has certified permanent disability at 11 percent. The Tribunal has erred in taking the disability at 6 percent only. More importantly, he would contend that the Tribunal erred in apportioning the negligence on the part of the appellant and 2nd respondent in the ratio of 50:50. He would further submit that only Rs.8,000/- is awarded towards pain and suffering, and Rs.3,000/- is awarded towards loss of amenities and happiness in life. He would also contend that the rate of interest is also low. Learned counsel further contends that though Rs.56,210/- is MACA 1232/2007 -3- fixed as compensation for loss of earning what is awarded is Rs.38,425/- as total compensation. 4. Learned counsel for the insurance company supported the award. 5. The first question to be considered is as to what is to be the amount of compensation. Ext.A9 certificate shows disability at 11 percent. Appellant sustained fracture left fibula upper third, multiple lacerated wounds and head injuries. The Tribunal noted that the fractures were united On the basis of the nature of injuries sustained, period of treatment undergone and the present condition of injury the Tribunal found that maximum disability can be 6 percent. Ext.A9 certificate shows that the petitioner has sustained whole body disability of 9.31 percent. The doctor was examined as Pw2. We notice that the appellant had sustained injuries- abraded contusion over occipital area of scalp, head injury, lacerated wound over left cheek and multiple lacerated wounds. We notice that the disability is as per Mc-Bride's Scale. The doctor is also examined. Various disabilities are noted. They include difficulty to squat properly, difficulty to climb up and get down steps, difficulty for firm tight grip with (u) hand, difficulty to carry objects with (u) hand, to raise MACA 1232/2007 -4- heavy objects above the head with (u) hand, and difficulty to turn the forearm. Even though the fracture is united, we would think that we would be justified in increasing the disability from 6 percent to 8 percent. 6. Further we feel that the income of the appellant can be taken as Rs.2,000/- per month. The appellant is working as an Electrician in a tyre company. In such circumstances, certainly we are justified in taking Rs.2,000/- as monthly income after retirement. On this basis the appellant would be entitled to Rs.15,360/- towards disability in place of Rs.8,640 and thus the appellant is entitled to Rs.6,720 more under the said head. In the nature of injuries we award Rs.2,000/- more under the head pain and suffering. We have already noted various difficulties which the appellant is facing. These difficulties will affect the enjoyment of amenities in his daily life. In such circumstances, the Tribunal was not justified in awarding Rs.3,000/- under the head loss of amenities. We award Rs.7,000/- more under this head. Having regard to the facts and the site of accident we are of the view that the Tribunal ought to have apportioned contributory negligence in the ratio of 30:70 that is 30 percent negligence attributed to the appellant and 70 percent to the MACA 1232/2007 -5- driver of the car. On this basis the appellant would be entitled to Rs.63,899/-. After deducting Rs.38,425/- the appellant would be entitled to Rs.25,474/-. Accordingly, the appeal is partly allowed and the appellant is allowed to realise Rs.25,474/- more which is rounded off to Rs.25,500/- with interest at 7.5 percent from the date of petition till realisation from the 3rd respondent. The appellant is also allowed to realise interest at 7.5 percent on the amount already awarded from the date of petition till realisation from the 3rd respondent. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS