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 10TH FEBRUARY 2011 / 21ST MAGHA 1932 MACA.No. 627 of 2005() ---------------------- OPMV.1198/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): APPELLANT/PETITIONER ----------------------- KUNHALASSAN, AGED 29 YEARS, S/O.KUNHALAVI, KUNIYIL HOUSE, PUTHUR P.O., KOTTAKKAL. BY ADV. SRI.P.SAMSUDIN SRI.P.BABU KARTHIKEYAN. RESPONDENTS/RESPONDENTS --------------- 1. ARAVINDAKSHAN, S/O.KOCHAN, CHALLAKKAD HOUSE, PUTHUSSERI P.O., PALAKKAD (DRIVER). 2. N.ASHRAF, LAVANYA TOURS AND TRAVELS, DOWNHILL, MALAPPURAM (OWNER). 3. UNITED INDIA INSURANCE CO.LTD., MANJERI. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.627 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1198/2000 on the file of Motor Accidents Claims Tribunal, Manjeri. In this appeal he challenges the judgment and award of the Tribunal dated December 8, 2004 awarding a compensation of Rs.23,323/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident : 1. Fracture of right radius. 2. Fracture of right ulna. 3. Extensive abrasion right forearm and right elbow. 2. The accident occurred on December 29, 1998 at about 6.30 p.m. While the claimant was travelling in a bus from Palakkad to Malappuram driven by the first respondent and when he reached at Cheriyani, the bus dashed against the mini lorry which came from the opposite side. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor MACA.No.627/2005 2 Vehicles Act claiming a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, the driver and the owner of the offending bus remained absent before the Tribunal. The third respondent, the insurer of the offending bus filed a written statement admitting the policy. 4. Exts.A1 to A3 and Ext.X1 series 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 negligence of both the drivers and assessed a compensation of Rs.46,646/-, but awarded only 50% of the amount assessed to the claimant i.e. Rs.23,323/- with interest @ 6% per annum from the date of petition till realisation and a cost of Rs. 900/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal regarding the negligence. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The following points arise for MACA.No.627/2005 3 consideration : 1. Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the driver of the mini lorry involved in the accident and reducing the compensation assessed to that extent can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 7. For several reasons, we feel that the finding of the Tribunal that there was 50% contributory negligence on the part of the driver of the mini lorry involved in the accident cannot be sustained. The police has charged the case against the first respondent, the driver of the bus involved in the accident. There was no contra evidence adduced on the side of the contesting third respondent Insurance company to prove otherwise. Therefore, we hold that the accident occurred solely due to the negligence of the first respondent. That being so, the third respondent is liable to pay the entire compensation assessed by the Tribunal i.e. Rs.46,646/-. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.46,646/-. The break up of the compensation MACA.No.627/2005 4 amount assessed is as under: Transport to hospital - Rs. 500/- Extra nourishment - Rs. 1,400/- Medical expenses - Rs. 17,446/- Pain and suffering - Rs. 12,000/- Disability - Rs. 15,300/- 9. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 10. The Tribunal took the annual income of the claimant as Rs.15,000/- and took the percentage of disability as 6% and adopted a multiplier of 17 and assessed a compensation of Rs. 15,300/- for the disability caused. According to the claimant, he was a coolie earning Rs.3,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,000/-. The percentage of disability as 6% 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. 24,480/- ( 6% x 2000 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.9,180/-. MACA.No.627/2005 5 11. No compensation is seen awarded by the Tribunal for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 10,000/- would be reasonable 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. 12. 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 for the enhanced compensation. 13. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs.46,646/-. He is also entitled an additional compensation of Rs. 19,180/- with interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within MACA.No.627/2005 6 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.627/2005 7