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 16TH JULY 2010 / 25TH ASHADHA 1932 MACA.No. 805 of 2006() ---------------------- OPMV.1565/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT: ------------------------ THANKAPPAN, S/O. SWATHI, AMMACHAMVILA VEEDU, DEVICODE, CHERIAKOLLA P.O., VELLARADA, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): RESPONDENTS --------------- 1. A. STALIN KUMAR, NEAR GOVT.L.P.S. MATHOORKONAM, ARUMANAI P.O., KANNIYAKUMARI DISTRICT. 2. JAYAKUMAR, S/O. MUTHAYYAN, CHOOTTORKONAM, PADINKKARATHARAVILAI VEEDU, ARUMANAI P.O., KANNIYAKUMARI DISTRICT. 3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 805 of 2006 ------------------------------------------------------ Dated: JULY 16, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in OP(MV) 1565/2002 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. He suffered a Type III compound fracture both bone (R) leg and a lacerated wound over post medial aspect of (R) knee, in a motor accident which occurred on October 18, 2002 at about 7.30 p.m. at Ottamaram. While he was pillion riding a motorcycle bearing registration No.TN- 74-Z-4671 along Nagercoil - Parassala National Highway, he was knocked down by an Allwin Nissan bearing registration No.TAC- 5566 driven by the 2nd respondent. He filed the OP under sec.166 of the Motor Vehicles Act claiming a compensation of Rs.3 lakhs alleging negligence against the 2nd respondent, the driver of the Allwin Nissan. 2. Respondents 1 and 2, the owner and the driver of the offending vehicle filed a written statement before the Tribunal admitting the accident, but denying the liability. The 3rd respondent, insurer of the offending vehicle, filed a written statement admitting the policy. 3. This OP was jointly tried along with OP(MV)1558/2002 filed by the rider of the motorcycle who sustained injuries in the accident M.A.C.A. 805 of 2006 2 and a common award was passed. 4. PWs.1 and 2 were examined and Exts.A1 to A28 were marked before the Tribunal. PW.2 is the claimant in this case and Exts.A17 to A28 relate to this case. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal awarded a compensation of Rs.91,650/- with interest @ 6% 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. 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 2nd 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 Tribunal awarded a total compensation of Rs.91,650/-. The break up of the compensation awarded is as under:- permanent disability - Rs.50400/- pain and suffering - 12000/- loss of amenities etc. - 15000/- loss of earnings for 4 months- 8000/- M.A.C.A. 805 of 2006 3 transportation - 1500/- treatment and incidental expenses - 4000/- bystander' expenses - 500/- damage to clothing - 250/- 8. The Counsel for the appellant/claimant sought enhancement of the compensation awarded for the disability caused, for pain and suffering endured and under other heads. The Tribunal awarded a compensation of Rs.50,400/- for permanent disability. Ext.A26 certificate of disability shows that the claimant has suffered a disability of 19% due to the injuries sustained by him. He has shortening of his right leg segment by 1½ inches and wasting of right thigh and leg muscle by 3 cms. due to disuse atrophy. Copy of Ext.A26 was produced by the counsel for the appellant for our perusal. The Tribunal took the percentage of disability as 14% which appears to be reasonable. The Tribunal took his monthly income as Rs.2000/-. As the claimant was a Mason, we feel that his monthly income can be reasonably fixed at Rs.2500/-. The Tribunal adopted a multiplier of 15 which appears to be the correct multiplier. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.63,000/-. Thus, on this count he is entitled to an additional compensation of Rs.12,600/-. M.A.C.A. 805 of 2006 4 9. The Tribunal awarded a compensation of Rs.12000/- for pain and suffering endured, which appears to be quite inadequate. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.15000/- 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. 10. Thus the claimant is entitled to an additional compensation of Rs.15,600/-. He is entitled to interest @ 7.5% per annum for the compensation already awarded and for the additional compensation now awarded from the date of petition till realisation and proportionate cost. The 3rd 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 mt/-