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 11TH JUNE 2010 / 21ST JYAISTHA 1932 MACA.No. 1035 of 2004() ----------------------- OPMV.320/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- C.M.KHADAR, S/O. MOIDU, CHERUTHODIYIL HOUSE, KUPPADI DESOM, BATHERI TALUK, P.O.MOOLANKAVU. BY ADV. SRI.JIJO PAUL RESPONDENT(S): RESPONDENTS -------------------------- 1. MUNEER, S/O. KHADAR, NADALAYIL HOUSE, P.O.MOOLANKAVU, ODAPPALAM, SULTHANBATHERI TALUK. 2. T.K.ABRAHAM, S/O. KURIYAN, SAJI NIVAS, P.O.THALAPPUZHA, MANANTHAVADI. 3. NEW INDIA ASSURANCE COMPANY, KALPATTA BRANCH, P.O.KALPATTA NORTH. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 SMT.AYSHA YOUSEFF FOR R1 SRI.RAFFEEKH.K FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1035 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.320/1997 of Motor Accidents Claims Tribunal, Wayanad challenges the judgment and award of the Tribunal dated August 12, 2003 awarding a compensation of Rs. 45,150/- 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 : The claimant was aged 41 at the time of accident and used to earn Rs. 3,000/- per month as a head load worker. On December 22, 1996 at about 2.45 a.m., claimant was travelling in the jeep bearing Reg.No.KRZ 4393 driven by the first respondent. When he reached near Chunda town, due to the rash and negligent driving of the jeep by first respondent, the jeep capsized. The claimant sustained very serious injuries. According to the claimant, accident occurred due to the rash MACA.No.1035/2004 2 and negligent driving of the offending jeep by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 2,02,000/-. 3. Respondents 1 and 2, the driver and owner of the offending jeep remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending jeep filed a written statement admitting the policy. 4. PW1 was examined and Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by first respondent and awarded a compensation of Rs. 41,150/- with interest @ 9% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.1035/2004 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 fracture of left radius as revealed from Ext.A4, copy of the wound certificate issued from the hospital. Ext.A5 is the copy of the reference card. Ext.A6 is the certificate of disability issued by the doctor shows that he has suffered a permanent disability of 20%. Ext.A7 is the treatment certificate issued from the hospital. 8. The Tribunal awarded a total compensation of Rs.41,150/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 10,000/- Transport to hospital - Rs. 2,200/- extra nourishment - Rs. 1,000/- Damage to clothing - Rs. 250/- Treatment expenses - Rs. 4,000/- Bystander expenses - Rs. 1,200/- MACA.No.1035/2004 4 Pain and suffering - Rs. 7,500/- Disability - Rs.15,000/- 9. Counsel for the claimant sought enhancement of the compensation for the disability caused and on other heads. The Tribunal took the monthly income of the claimant as Rs.2,500/- and awarded a lump sum amount of Rs. 15,000/- for the disability caused. Ext.A6, the treatment cum disability certificate issued by the doctor shows that claimant has some disabilities. Taking into consideration the nature of the disabilities caused to the claimant, we feel that the percentage of disability can be assessed at 10%. The claimant was aged 41 at the time of the accident. Therefore, the proper multiplier that can be adopted in this case is 15. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 45,000/-. Thus on this count, the claimant is entitled to an additional compensation of Rs. 25,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 10. In the result, the claimant is entitled to an additional compensation of Rs. 25,000/-. He is entitled to interest @ 9% per MACA.No.1035/2004 5 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. MACA.No.1035/2004 6