IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 MACA.No. 1493 of 2004() ----------------------- OPMV.2336/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT: ------------------------ SARALADEVI, W/O. UNNIKRISHNAN, KOTTUVEETTIL HOUSE, "KAMAKSHI NIVAS", NEAR MAYILVAHANAM COMMUNITY HALL, CHUDUVALATHUR, SHORNUR P.O., PALAKKAD. BY ADV. SRI.P.V.CHANDRA MOHAN SRI.K.N.AJAYAN RESPONDENT(S): RESPONDENTS 1, 3 TO 6 --------------- 1. THE SECRETARY, M/S. TRICHUR DISTRICT SC/ST MOTOR TRANSPORT CO-OPERATIVE SOCIETY LTD., R-740, AYYANTHOLOE, THRISSUR. 2. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, KURUPPAM ROAD, THRISSUR. 3. MR. A. KESAVADAS, S/O. BALAKRISHNAN, ATTORE HOUSE, CHOOLISSERY P.O., THRISSUR. 4. ROY, S/O. ZACHARIA, MULAMTHANATH HOUSE, PANNISSERY, MANALITHARA P.O., THRISSUR. 5. NATIONAL INSURANCE CO.LTD., P.B.NO.89, AMBIKA ARCADE, M.G. ROAD, THRISSUR. ADV. SRI.M.A.GEORGE FOR R5 SMT.DEEPA GEORGE FOR R5 SMT.RAJI T.BHASKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1493 of 2004 ------------------------------------------------------ Dated: FEBRUARY 8, 2010 JUDGMENT Barkath Ali, J. The claimant in O.P.(MV) 2336/2000 of Motor Accidents Claims Tribunal, Thrissur has in this appeal challenged the award of the Tribunal dated July 19, 2004 granting her a compensation of Rs.3,71,750/- for the loss caused to her on account of the injury sustained in a motor accident. 2. The facts in brief are these: On April 18, 2000 at about 6.30 p.m. The appellant/claimant was travelling in a bus bearing registration No.KL-8/G 2115 along Thrissur - Mullurkkara road and when the bus reached at Parlikkad, another bus bearing registration No.KL-8/D 8823 came from the opposite side and dashed against the bus in which the claimant was travelling. She sustained crush injury on right shoulder and severe injury to her right breast. As a result of the injury sustained, her right arm was amputated and the right breast was removed. She was aged 34 and as a daily labourer, used to earn Rs.3000/- per month. Alleging rash and negligent driving against both the drivers, she has claimed a compensation of Rs.12,20,500/-. 3. The 1st respondent was the owner, the 2nd respondent was the driver and the 3rd respondent was the insurer of the bus bearing M.A.C.A. 1493 of 2004 2 registration No. KL-8/D 8823 and respondents 4 to 6 are the owner, driver and the insurer of the other bus involved in the accident. Respondents 1, 4 and 5 remained absent and were set ex parte by the Tribunal. No relief was claimed against the 2nd respondent. Respondents 3 and 6 filed separate written statements admitting the policy, but contending that there was no negligence on the part of the respective drivers. 4. The claimant was examined as PW.1 and Exts.A1 to A10 and Ext.B1 were marked on the side of the appellant/claimant before the Tribunal. No evidence was adduced on the side of contesting respondents 3 and 6. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence of respondents 2 and 5, the drivers of both the buses, and granted a compensation of Rs.3,71,750/- with interest at 6% per annum and proportionate costs. Dissatisfied with the quantum of compensation awarded, the claimant has now come up in appeal. 5. The accident was not disputed. It is also not disputed that the accident occurred due to the rash and negligent driving of both the buses by respondents 2 and 5. Therefore the only point which arises for consideration is whether the claimant is entitled for any enhanced compensation. M.A.C.A. 1493 of 2004 3 6. The Tribunal awarded compensation as follows:- Continuing permanent disability - Rs.2,67,750/- Pain and suffering - 25,000 disfigurement - 10,000 Loss of amenities of life - 15,000 Loss of earnings - 21,000 medical expenses, transportation to hospital, extra nourishment, damage to clothing, expenses of personal attendants 33,000 ----------------- Total 3,71,750/- ========== 7. The claimant sustained severe crush injury, amputation of right upper limb at the level of shoulder and avulsion of right breast. Ext.A2 is the copy of the wound certificate, Ext.A6 is the discharge summary, Ext.A7 series are the photographs and Ext.A8 is the certificate of disability. The claimant has suffered a permanent disability of 89% as certified in Ext.A8, Ext.A9 is the enquiry report as to amounts required for artificial limb. Ext.A10 series are medical bills for Rs.28,460/-. The Tribunal has fixed the permanent disability of the claimant as 75% and has taken her annual income as Rs.21,000/- and adopted 17 as the multiplier as she was aged 34 at the time of the accident. The Tribunal has awarded Rs.2,67,750/- for permanent disability caused. M.A.C.A. 1493 of 2004 4 8. It is pointed out by the learned counsel for the claimant/appellant that under Part II of Schedule I of Workmen's Compensation Act, the percentage of disability for amputation through shoulder joint is 90% and that in this case also the same percentage of disability may be allowed. We also feel that as the right hand of the claimant was amputated through shoulder joint and her right breast was removed, the percentage of disability as shown in Part II of Schedule I of Workmen's Compensation Act can be adopted in this case which is 90%. Regarding the annual income as well as the multiplier adopted, there was not much dispute. She was aged 34 at the time of the accident. Thus calculated, for the permanent disability caused, she is entitled to a compensation of Rs.3,21,300/- (90% of 1750 x 12 x 17). Therefore on this count she is entitled to an additional compensation of Rs.53,550/-. 9. The Tribunal awarded Rs.25,000/- for the pain and suffering. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs.50,000/- would be reasonable on this count. Thus, on this count the appellant is entitled to an additional compensation of Rs.25,000/-. For the disfigurement caused, the Tribunal awarded Rs.10,000/-. The right arm of the claimant was M.A.C.A. 1493 of 2004 5 amputated and her right breast was removed. Therefore we feel that towards disfigurement caused, a compensation of Rs.25,000/- will be fair and proper. Thus, on this count, the claimant is entitled to an additional compensation of Rs.15,000/-. 10. For the loss of amenities and enjoyment of life, the Tribunal awarded compensation of Rs.15,000/-. Having regard to the fact that her right arm was amputated, we feel that a compensation of Rs.35,000/- could be reasonable on this count. Therefore under this head the claimant is entitled to an additional compensation of Rs.20,000/-. 11. Towards medical expenses Rs.33,000/- was awarded by the Tribunal. Taking into account the nature of the injuries sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs.45,000/- could be fair and proper on this count. Thus, she is entitled to an additional compensation of Rs.12,000/- under this head. 12. There is another aspect in this case. The claimant has to fit artificial limb for her amputated right arm. Ext.A9 is the enquiry report regarding the amount required for artificial limb. The cost of artificial limb is Rs.35000/- as stated in Ext.A9. Therefore she is also entitled to Rs.35000/- towards the cost of artificial limb to be fitted. M.A.C.A. 1493 of 2004 6 13. Thus the claimant is entitled to an additional compensation of Rs.1,60,550/-. She is entitled to interest at the rate of 7.5% per annum from the date of petition till realisation. The Tribunal awarded interest only at the rate of 6% which appears to be very low. For the compensation already awarded also, the appellant is entitled to interest at the rate of 7.5% from the date of petition till realisation. The Insurance Companies i.e. respondents 3 and 6 shall deposit the amount in equal proportion before the Tribunal within one month from this date with interest and proportionate costs. The learned counsel for respondents 3 and 6 submitted that they have deposited the amount awarded by the Tribunal before the Tribunal. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-