IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 MACA.No. 804 of 2004() ---------------------- OPMV.840/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- AJITH KUMAR, S/O.PRABHAKARAN, CHEENIVLA VEEDU, CHADAYAMANGALAM,POREDAM P.O. MOOLAMCODE. BY ADV. SRI.T.KURIAKOSE PETER SRI.ABRAHAM P.GEORGE RESPONDENT(S): RESPONDENTS IN O.P.M.V. -------------------------------------- 1. MARIATH BEEVI, ANZAR MANZIL, PALLICKAL. 2. ANZAR, S/O.ALI UMMARKUTTY, ANZAR MANZIL, PALLICKAL VILLAGE. 3. THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, ASHHAR COMPLEX, P.B.NO.36, ATTINGAL BRANCH. SMT.P.A.REZIYA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.804 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.840/1999 of Motor Accidents Claims Tribunal, Punalur challenges the judgment and award of the Tribunal dated January 12, 2004 awarding a compensation of Rs. 1,18,331/- 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 a driver aged 23 at the time of the accident and used to earn Rs. 3,000/- per month, according to him. On January 19, 1999 at about 7 p.m. at Ganapathy Nada on the Pallickal- Chadayamangalam public road, claimant was standing in front of a pan shop purchasing some articles. At that time, a van bearing Reg.No.KL 01/K 4645 driven by the second respondent dashed against the pan shop and knocked down the claimant. Claimant sustained serious MACA.No.804/2004 2 injuries. Claimant in O.P.(MV)No.727/1999 sitting inside the pan shop also sustained injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending van by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending van are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 4 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending van remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending van filed a written statement admitting the policy. 4. This O.P. was jointly tried along with O.P.(MV)No.727/99 filed by another injured person in the accident and a common award was passed. Pws 1 and 2 were examined and Exts.A1 to A24 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 van by second respondent MACA.No.804/2004 3 and awarded a compensation of Rs. 1,18,331/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 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 second 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 the following injuries as revealed from Ext.A11, copy of the wound certificate issued from Mercy Hospital, Valakom. i) Fracture shaft tibia- fibula(right) middle one-third and lower one-third (both compound fractures). ii) Fracture medial malleolus, and iii) Lacerated injury 20 cm. x 6 cm.,extending from dorsum of foot to the upper one-third leg with skin and tissue loss. MACA.No.804/2004 4 8. Ext.A12 series and Ext.A21 series are referral O.P. cards issued from Medical College Hospital, Thiruvananthapuram. One referral card was issued from the Co-operative Medical College Hospital, Kochi. Ext.A14, the certificate of disability shows that claimant has a permanent disability of 19%. 9. The Tribunal awarded a total compensation of Rs.1,18,331/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 9,000/- Transportation exp. - Rs. 3,000/- Extra nourishment - Rs. 3,000/- Bystander exp. - Rs. 3,000/- Medical exp. - Rs. 15,563/- Pain and suffering - Rs. 15,000/- Disability - Rs. 69,768/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused. 11. The Tribunal took the monthly income of the claimant as Rs.1,800/- and took the percentage of disability as 19% as shown in Ext.A14 and adopted a multiplier of 17 and awarded Rs. 69,768/- for the disability caused. Claimant was a driver by profession which is proved by Ext.A24, copy of his driving licence. Therefore, we feel that MACA.No.804/2004 5 the monthly income of the claimant can be reasonably fixed at Rs. 2,250/-. The percentage of disability as 19% and the multiplier as 17 taken by the Tribunal are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 87,210/- ( 19% x 2250 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.17442/-. 12. The Tribunal awarded Rs.9,000/- for loss of earnings for five months @ Rs. 1800/- per month. As we have fixed the monthly income of the claimant as Rs. 2,250/-, he is entitled to a compensation of Rs.11,250/- on this count. Thus on this count, the claimant is entitled to an additional compensation of Rs. 2,250/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. There is another aspect in this case. The Tribunal awarded interest only @ 6% per annum which appears to be 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 also MACA.No.804/2004 6 for the enhanced compensation. 14. In the result, the claimant is entitled to an additional compensation of Rs. 19,692/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. He is also entitled to 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.804/2004 7