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 22ND JUNE 2010 / 1ST ASHADHA 1932 MACA.No. 2076 of 2005() ------------------------------------ OPMV.1719/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ------------------------------------- VASU. P.K, S/O.RAMAN, KALAPPURACKAL HOUSE, NEDUMATTOM BHAGOM, THOTTAKKADU. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. C. MANIAPPAN, PARATHARA HOUSE, PARAL, VAZHAPPALLY.P.O, CHANGANACHERRY. 2. SEBASTIAN @ SHAJI, S/O.YOHANNA, CHENNAKKUNNEL HOUSE, VELLUKKUNNU BHAGOM, KURUMBANADOM, MADAPPALLY. 3. THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, SALIM BUILDINGS, CHANGANACHERRY. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2076 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 22nd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.1719 of 1999 of the Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated July 29, 2003, awarding a compensation of Rs.52,400/- 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 47 at the time of the accident and as a coolie, he used to earn Rs.4,000/- per month. On September 15, 1998 at about 10.30 a.m. the claimant was travelling in an auto-rickshaw bearing MACA 2076/2005 2 registration No.KL-5C/4871, driven by the second respondent. When he reached at Changanacherry, due to the rash and negligent driving of the auto-rickshaw by the second respondent, it overturned. 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 second respondent. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending auto-rickshaw are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs. 3,78,000/-. 3. Respondents 1 and 2, owner and driver of the offending auto-rickshaw remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending auto-rickshaw, filed a written statement, admitting the policy. 4. Exts. A1 to A6 were marked on the side of the claimant and Exts.B1 and B2 were marked on the side of the MACA 2076/2005 3 respondents. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.52,400/- with interest at the rate of 9% 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 claimant and learned 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, driver of the auto- rickshaw, is not seriously challenged in this appeal. Therefore, the only question for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant had traumatic amputation of middle and index finger and a portion of ring finger, as seen from Ext.A2 discharge card. Ext.A5 certificate of disability shows that the claimant has now a disability of 22%. 8. The Tribunal awarded a total compensation of MACA 2076/2005 4 Rs.52,400/-. Break up of the compensation awarded is as under:- Loss of earnings : Rs. 6,000/- Partial disablement : Rs.23,400/- Pain and suffering : Rs.10,000/- Treatment expense : Rs. 2,000/- Transportation and : Rs. 1,000/- bystander’s expense. Loss of amenities : Rs.10,000/- ------------------ Total : Rs.52,400/- ======= 9. The learned counsel for the appellant has mainly sought enhancement of compensation for the disability caused. 10. The Tribunal took the income of the claimant as Rs.1,500/- per month, took the percentage of disability as 10%,adopted a multiplier of 13 and awarded a compensation of Rs.23,400/- for the disability caused. The claimant was a coolie, aged 47 at the time of the accident. Therefore, we feel that his monthly income can reasonably be fixed at Rs.2,000/-. In Ext.A5 certificate of disability the percentage of disability shown as 22%. Under the Schedule to the Workmen’s Compensation Act, in the case of loss of MACA 2076/2005 5 three fingers, permanent disability is prescribed as 30%. In the present case the index finger, middle finger and a portion of ring finger were amputated. Therefore, we feel that the percentage of disability of the claimant can be assessed at 20%. Proper multiplier that can be adopted in this case is 13 as taken by the Tribunal. Thus calculated, for the disability caused and for the consequential loss of earning power, the claimant is entitled to a compensation of Rs.62,400/- (Rs.2,000/- x 12 x 13 x 20%). Thus on this count, the claimant is entitled to an additional compensation of Rs.39,000/-. 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.39,000/-. He is entitled to interest @ 9% from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending auto-rickshaw shall deposit the amount within two months from the date of receipt of a copy of this MACA 2076/2005 6 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