IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 MACA.No. 1219 of 2007() ----------------------- OPMV.482/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT(S): PETITIONER: --------------------------------------------- LALU SAMUEL, S/O.SAMUEL PEACE LAND, ALENCHERRY, YEROOR P.O., ANCHAL. BY ADVS. SRI.T.K.KOSHY, SRI.N.BABU VARGHESE. RESPONDENT(S): RESPONDENTS 2 AND 3: ----------------------------------------------------------------- 1. NAZARUDHEEN, S/O.MOHAMMED HANEEFA RAWTHER, SUNITHA MANZIL, MUSLIM STREET, KOTTARAKKARA. 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., P.B.NO.8, VIJAYANAGAR BUILDING, PULAMON-P.O., KOTTARAKKARA. R2 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= M.A.C.A. No. 1219 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= Dated this the 17th day of March, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.482 of 2003 of the Motor Accidents Claims Tribunal, Punalur challenges the award of the Tribunal dated September 15, 2006 awarding a compensation of Rs.3,18,400/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these:- The claimant was aged 32 at the time of the accident. He was the proprietor of Meenu Bank, Aalancherry and was also working as a Fitter and used to earn Rs.10,000/- per month, according to him. On January 10, 2003 while he was riding his motor cycle along Anchal – Kulathupuzha public MACA 1219/07 2 road, an auto-rickshaw bearing registration No. KL-2 K 8706, driven by the first respondent, came at a high speed from the opposite side and knocked him down. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to a rash and negligent driving of the offending auto-rickshaw by the first respondent. The first respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending auto-rickshaw are jointly and severely liable to pay the compensation to the claimant. The claimant claimed a compensation of Rs.12 lakhs. 3. Respondents 1 and 2, driver and owner of the offending auto-rickshaw remained absent and were set ex parte by the Tribunal. The third respondent Insurance Company filed a written statement, admitting the policy and contending that there was also negligence on the part of the claimant. 4. The claimant was examined as PW1 and Exts. A1 to A14 were marked on his side before the Tribunal. No MACA 1219/07 3 evidence was adduced by the contesting third respondent, Insurance Company. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to negligence on the part of the first respondent and awarded a compensation of Rs.3,18,400/- with interest at the rate of 6% p.a. from the date of petition till realization and cost of Rs.2,000/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant and learned counsel for 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 Tribunal awarded a total compensation of Rs.3,18,400/-. The break up of the compensation awarded is as under:- MACA 1219/07 4 Loss of earning : Rs.5,000/- Transport to hospital : Rs.1,000/- Extra-nourishment ; Rs.1,000/- Damage to clothing and articles : Rs.400/- Medical expenses ; Rs.2,00,000/- By-stander expenses : Rs.1,500/- Pain and suffering : Rs.7,500/- Permanent disability ; Rs.1,02,000/- ---------------------- Total ; Rs.3,18,400/- ========= 8. Ext.A8 is the copy of the wound certificate. Ext.A9 is the discharge summary. Ext.A10 certificate of disability, issued by the doctor, shows that the claimant has suffered 45% disability. The claimant sustained the following injuries:- 1) Fracture left temporal area and diffuse cerebral oedema and ventricles. 2) Temperoparietal craniotomy and evacuation of acute SDH and removal of contused right fronto temporal lobe done. 3) Hemiparesis left. 4) Maxillo facial injuries. MACA 1219/07 5 5) Lacerated wound over the occipital frontal region. 6) Oedema both eye lids. 7) Comatosed spontaneously breathing. 8) Regular respiration. 9) Right haemorrhagic contusion and blood overlying tentorium. 10)Pupils R & L both reacting. 11)Limb movements of upper limb + mild paucity of left sided limb. 12)No movements of lower limbs and planter no response bilaterally and injuries all over the body. The claimant was in the hospital for 35 days. As his left side is paralyzed, he is not able to do any job. 9. At the request of the appellant/claimant his disability was assessed by the Medical Board, Medical College Hospital, Thiruvananthapuram. The said disability certificate is marked as Ext.X1. The Medical Board has certified that his percentage of disability is 64%. The Board certified that the claimant has now the following MACA 1219/07 6 disabilities:- 1) Residual spastic hemiparesis (left). 2) Bilateral pyramidal sign-left more than right. 3) Subjective sensory impairment – right lower limb. Taking into consideration the nature of the injuries sustained by the claimant, we feel that the percentage of disability certified by the Medical Board as 64% is on the higher side. We are of the view that disability of the claimant can be assessed at 50%. 10. The Tribunal took monthly income of the claimant is Rs.2,500/-. The claimant, being a Fitter, as seen from Ext.A13 certificate, which says that he has passed the Fitter Course, we are of the view that his monthly income can be reasonably fixed at Rs.3,000/-. The multiplier adopted by the Tribunal is 17, which is found to be reasonable. Thus, for the disability caused, the claimant is entitled to a compensation of Rs.3,06,000/- (Rs.3,000x12x17x50/100). Thus, on this count, the claimant is entitled to an additional MACA 1219/07 7 compensation of Rs.2,04,000/-. 11. For pain and suffering the Tribunal awarded a compensation of Rs.7,500/- and for bystander’s expenses of Rs.1,500/-, which appear to be very low. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.20,000/- for pain and suffering and Rs.3,000/- for by-stander’s expenses would be reasonable. For treatment expenses Rs.2 lakhs was awarded by the Tribunal. The claimant has produced bills for Rs.2,20,410/-. The Tribunal did not state any reason for reducing that amount. Therefore, the claimant is entitled to the entire compensation, for which he produced the bills i.e, Rs.2,20,410/-. 12. No compensation was awarded by the Tribunal for the loss of amenities and enjoyment in life. Taking into consideration the nature of injuries sustained and period of treatment the claimant has undergone, we feel that Rs.25,000/- would be MACA 1219/07 8 reasonable for loss of amenities and enjoyment in life. 13. There is another aspect. Towards loss of earnings, the Tribunal awarded only Rs.5,000/-, i.e., for two months at the rate of Rs.2,500/- per month. The nature of the injuries sustained by the claimant shows that he must have been disabled for six months, for which he is entitled to a compensation of Rs.18,000/- (Rs.3,000/- x 6). Therefore, on this count, the claimant is entitled to an additional compensation of RS.13,000/-. Regarding the compensation awarded under other heads, we find the same to be reasonable and we are not disturbing the same 14. Therefore, the claimant is entitled to additional compensation of Rs.2,76,410/-. He is entitled to interest at the rate of 7.5% p.a. from the date of petition till realization and proportionate cots. The Tribunal awarded interest only at 6%, which appears to be very low. Therefore, for the compensation already awarded by the Tribunal also the claimant is entitled to interest at 7.5 % p.a. from the ate of petition till realization. The second respondent, being the MACA 1219/07 9 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 that extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn