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 17TH MARCH 2010 / 26TH PHALGUNA 1931 C.M.Appln.No.914/2008 & MACA.No. 909 of 2008 ---------------------- MVOP.477/2002 of SPL.COURT FOR EC ACT CASES &MACT,TSR .................... APPELLANT/PETITIONER ---------------------------------- SUMESH, S/O.MUTHU, PUTHENVEETTIL HOUSE, KECHERY DESOM, NADATHARA VILLAGE, THRISSRU DISTRICT. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): RESPONDENTS -------------------------- 1. A.T.SHAJU, S/O.THOMAS, ALAPATT HOUSE, NADATHARA P.O., THRISSUR DISTRICT (OWNER CUM DRIVER OF KL-8/D 8850). 2. THE NEW INDIA ASSURANCE CO.LTD., PERINCHERRY BUILDINGS, ROUND NORTH THRISSUR (INSURER OF KL-8/D-8850). 3. K.M.SUBHESH, KAKKONATTU HOUSE, PUTHUR P.O., THRISSUR DISTRICT (OWNER OF KL-8/C-7356). 4. RATHEESH E.A., S/O.APPU, ERAVIMANGALATH HOUSE, POLUKARA, ERAVIMANGALAM (DRIVER OF KL-8/C-7356). 5. THE ORIENTAL INSURANCE CO.LTD., 2ND FLOOR, T.B.BUILDING, P.B.NO.158, ROUND WEST, THRISSUR, PIN - 680001, (INSURER OF KL-8/C-7356). ADV. SMT.M.HEMALATHA FOR R2 DR.ELIZABETH VARKEY FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.NO.909/2008 JUDGMENT Appellant and counsel absent. Dismissed. 17-03-2010 Sd/-, A.K.BASHEER, JUDGE Sd/-, P.Q.BARKATH ALI, JUDGE A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 909 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 9th day of April, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.477 of 2002 of the Motor Accidents Claims Tribunal, Thrissur challenges the judgment and award of the Tribunal dated August 24, 2007, awarding a compensation of Rs.58,000/- for the loss caused to the claimant, on account of the injury sustained by him 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 used to earn Rs.4,000/- per month as a Goldsmith, according to the claimant. On August 26, 2001 while the claimant was pillion riding on a motor cycle bearing registration No.KL-8V 7356 along the Polukara Nadathara public road, an auto-rickshaw bearing MACA 909/08 2 registration No.KL-8D 8850, driven by the first respondent, came at a high speed from the opposite side and dashed against the motor cycle in which the claimant was pillion riding. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending auto-rickshaw by the first respondent. Respondents 1 and 2, owner-cum- driver and insurer of the offending auto-rickshaw are jointly and severely liable to pay the compensation to the claimant. Respondents 3, 4 and 5 are the owner , driver and insurer of the motor cycle in which the claimant was traveling. No relief was claimed against them. The claimant claimed a compensation of Rs. 1,20,000/-. 3. Respondents 1 and 3, owners of both the vehicle, remained absent and were set ex parte by the Tribunal. The second respondent, insurer of the offending auto-rickshaw, filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence on the part of the rider of the motor cycle. The fourth MACA 909/08 3 respondent, rider of the motor cycle, filed a written statement, contending that the accident occurred due to the negligence on the part of the first respondent. The fifth respondent, insurer of the motor cycle, filed a written statement, admitting the policy. 4. Exts. A1 to A11 were marked on the side of the claimant and Exts.B1 and B2, copies of the policies of both the vehicles, were marked on the side of the Insurance Company. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.58,000/- with interest at the rate of 7% p.a. from the date of petition till realization and cost. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant and learned counsel for respondents 2 and 5. 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 for consideration is MACA 909/08 4 whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries, as revealed from Ext.A9 copy of the wound certificate issued from the Jubilee Mission Hospital, Thrissur:- 1) Fracture both bones lower third right leg. 2) Lacerated wound 5 x 3 cm. over knee joint bone deep exposing the joint cavity right side. 3) Swelling tenderness and bony deformity at the junction of middle lower 1/3rd leg right. He was admitted in the hospital on 26-8-2001 and was hospitalized for 12 days. 8. The Tribunal awarded a total compensation of Rs. 58,000/-. Break up of the compensation awarded is as under:- Loss of earning : Rs.8,000/- Transportation : Rs.1,000/- Extra nourishment : Rs.1,000/- Treatment expenses : Rs.19,800/- By-stander’s expenses : Rs.1,200/- MACA 909/08 5 Pain and suffering : Rs.12,000/- Loss of amenities : Rs.8,000/- and enjoyment of life. Compensation for discomfiture : Rs.7,000/- ------------------ Total : Rs.58,000/- ======= 9. The learned counsel for the appellant has pointed out that no compensation was awarded for the disability caused, even though Ext.A11 certificate of disability shows that the claimant suffered 10% disability. There is force in the above contention. In Ext.A11 it is noted that the claimant has now stiffness of right ankle and knee and that there is scar on the fractured leg.Taking into consideration the disabilities mentioned in Ext.A11, we feel that the percentage of disability caused to the claimant can be taken as 5%. The Tribunal took monthly income of the claimant as Rs.2,000/-. According to the claimant, he, as a Goldsmith, and used to earn Rs.4,000/- per month. Taking into consideration the fact that even as a coolie, he could earn MACA 909/08 6 Rs.100/- per day, we feel that the monthly income of the claimant can reasonably be fixed at Rs.2,500/-. As the claimant was aged 20 at the time of the accident, total multiplier that can be adopted is 16. Thus, for the disability caused, the claimant is entitled to compensation of Rs.24,000/-. 10. The Tribunal awarded Rs.8,000/- for loss of earnings i.e., for four months @ Rs.2,000/- per month. As we have found that his monthly income can be fixed at Rs.2,500/-, he is entitled to a compensation of Rs.10,000/- for the loss of earnings. Thus, the claimant is entitled to an additional compensation Rs.2,000/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result, the claimant is entitled to an additional compensation of Rs.26,000/-. He is entitled to interest @ 9% from the date of petition till realization and proportionate cost. The second respondent being the insurer MACA 909/08 7 of the offending auto-rickshaw shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn