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 29TH MARCH 2010 / 8TH CHAITHRA 1932 MACA.No. 847 of 2007(F) ----------------------------------- [O.P(MV).NO.193/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY] .................... APPELLANT/PETITIONER: ------------------------------------- K.P. GIREESH, S/O. KUNHAMBU, THIKKIDI HOUSE, VELLUR AMSOM, ANNUR DESOM, PAYYANNUR (VIA), KANNUR. BY ADV. SRI.M.V.AMARESAN. RESPONDENT/RESPONDENT NO.2: --------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD., TALIPARAMBA. BY ADV. SRI.S.MAMMU. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= M.A.C.A. No. 847 of 2007 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= Dated this the 29th 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.193 of 2001 of the Motor Accidents Claims Tribunal, Thalassery challenges the award of the Tribunal dated October 30, 2006 awarding a compensation of Rs.87,150/- 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 23 at the time of the accident and used to earn Rs.4.500/- per month, as a Fitter, according to him. On October 20, 1999 while the claimant was riding a motor cycle bearing registration No. KL 13/E 7156 from Olavara to Payyannur. When he passed Olavara Bridge, a lorry bearing registration No. KLN 7999 came from the opposite side and dashed against the motor cycle of the MACA 847/2007 2 claimant. The claimant sustained serious injuries. The pillion rider succumbed to the injuries sustained. According to the claimant, the accident occurred due to the rash and negligent driving of the offending lorry by the first respondent. The first respondent as the owner-cum- driver and the second respondent as the insurer of the vehicle are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.2 lakhs. 3. The first respondent, owner-cum-driver of the offending lorry, filed a written statement, admitting the accident, but denying the liability on the ground that the accident occurred due to the negligence on the part of the claimant. The second respondent Insurance Company filed a written statement, admitting the policy. 4. Exts. A1 to A9 were marked on the side of the claimant before the Tribunal. The certificate of disability was marked as Ext.X1. No evidence was adduced by the contesting second respondent. The Tribunal, on an MACA 847/2007 3 appreciation of the evidence, awarded a compensation of Rs.87,150/- with interest at the rate of 7% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimant and learned 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 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 claimant sustained the following injuries as revealed form Ext.A2 copy of the wound certificate, a copy of which is made available for our perusal:- 1) Split lacerations 8 x 5 cms and 6 x 5 cms. over the scalp with cerebral concussion. MACA 847/2007 4 2) Swelling and abrasions 3 x 2 cms. and 5 – 4 cms. over the right knee joint. 3) Swelling and tenderness over the right hand with fracture of 4tgh metacarpal bone. 4) Tenderness over the left hip with fracture of left ishcio-pubic rami. 5) Pain and tenderness over the lower back with fracture of sacrum on the right side. 6) Swelling and tenderness over the right hip joint with fracture of acetabullum. 7) Fraacture of maxillary bone with loss of 2nd, 3rd, 4th and 6th tooth on the right side. 8) Abrasion 5 x 5 cms. over the left elbow. MACA 847/2007 5 The claimant has lost 8 teeth. Ext.A3 series are discharge summary and discharge card issued from the Unity Health Complex, copies of which are made available to us for perusal. He was admitted on 20-10-1999 and was discharged on 10-11-1999. Ext.X1 is the disability certificate issued from the Medical Board, District Hospital, Kannur, wherein his disability was assessed as 6%. 8. The Tribunal awarded a total compensation of Rs.87,150/-. The break up of the compensation awarded is as under:- Loss of earning : Rs.6,000/- Transportation : Rs3,000/- Medical expense : Rs.22,248/- Extra nourishment : Rs.2,000/- Expenses of bystander : Rs.5,400/- Pain and suffering : Rs.30,000/- Compensation for loss of teeth : Rs.12,000/- Loss of earning capacity : Rs.6,480/- --------------------- Total : Rs. 87,128/- Rounded to : Rs.87150/- ======== MACA 847/2007 6 9. The learned counsel for the appellant/claimant mainly sought enhancement of compensation awarded under disability caused and for loss of earning power. The Tribunal took monthly income of the claimant as Rs.1,500/- per month, adopted a multiplier of 18 and took the disability of the claimant as 2% and awarded Rs.6,480/- for disability caused. We find the same to be very low. According to the claimant, he was working as a Fitter and used to earn Rs.4,500/- per month. Though no document is produced to prove the same, we feel that even as a coolie, he would have earned Rs.2,500/- per month, which can be taken as his monthly income. 10. As regards the percentage of disability caused, in Ext.X1 the Medical Board assessed disability as 6%. Taking into consideration the disabilities noted in Ext.X1, we are of the view that the percentage of disability mentioned in Ext.X1 can be accepted. The multiplier adopted by the Tribunal as 18 is not seriously challenged in this appeal. Thus, the claimant is entitled to a MACA 847/2007 7 compensation of Rs.32,400/- for disability caused. Thus, on this count, the claimant is entitled to an additional compensation of Rs.25,920/-. 11. No amount was granted for the loss of amenities and enjoyment in life. Therefore, taking into consideration the nature of the injuries and the fact that the claimant lost 9 teeth in upper jaw and 5 teeth in lower jaw, we feel that the compensation of Rs.10,000/- for the loss of amenities and enjoyment in life would be reasonable. 12. There is another aspect in this case. The Tribunal awarded a compensation of Rs.6,000/- for loss of earning i.e., four months at the rate of Rs.1,500/- per month. We have fixed monthly income of the claimant as Rs.2,500/- Thus, the claimant is entitled to an additional compensation of Rs.4,000/- on this count. The compensation awarded under other heads is found to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is entitled to an additional compensation of Rs.39,920/-. He is entitled to MACA 847/2007 8 interest at the rate of 9% p.a. from the date of petition till realization. The second 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 with notice to the claimant. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn