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 29TH JULY 2010 / 7TH SRAVANA 1932 MACA.No. 902 of 2010 ---------------------- OPMV.2524/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER ------------------------ MRS.LALITHA MADHAVAN,W/O.MADHAVAN, THRIPAKAL HOUSE,KURICHIKARA.P.O, THRISSUR-680 028. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): RESPONDENTS -------------------------- 1. SUKUMARAN, S/O.NARAYANAN,KULAMKUTHI HOUSE P.O.PERINGAVU,THRISSUR DISTRICT. 2. MANI @ SOMAN,S/O.KORUKUTTY, KANDANKAYIL HOUSE,MATTAMPURAM.P.O, THRISSUR DISTRICT. 3. THE NEW INDIA ASSURANCE CO.LTD, BRANCH OFFICE-THRISSUR. ADV. SRI.C.CHANDRASEKHARAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 902 of 2010 ------------------------------------------------------ Dated: JULY 29, 2010 JUDGMENT Barkath Ali, J. Appellant, is the claimant in OP(MV) 2524/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. She is a lady aged 41 at the time of the accident, and used to earn Rs.5000/- per month by self employment, according to her. She sustained the following injuries when the autorickshaw bearing Regn.No.KL-8/E 2172 in which she was travelling on July 28, 2004 at about 8.30 p.m. capsized at Mattampuram Kundukad public road:- “fracture of lower 1/3rd of right tibia and fracture of lateral malleolus right leg.” Alleging negligence against the 2nd respondent, driver of the autorickshaw, she filed the OP before the Tribunal under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.2 lakhs. 2. Respondents 1 and 2, owner and driver of the offending autorickshaw, remained absent before the Tribunal. The 3rd respondent, insurer of the offending autorickshaw, filed a written statement admitting the policy. 3. Exts.A1 to A8 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting 3rd M.A.C.A. 902 of 2010 2 respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the 2nd respondent and awarded a total compensation of Rs.92,000/- with interest @ 8% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 5. 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. 6. The break up of the compensation amount awarded is as under: loss of earning Rs.7500/- transportation 1000/- extra nourishment 1500/- damages to clothing 500/- treatment 43403/- bystander's expenses 2000/- pain and suffering 15000/- disability 21000/- ------------------- Total 91903/- M.A.C.A. 902 of 2010 3 rounded off to Rs.92,000/- ============ 7. Counsel for the claimant sought enhancement of the compensation for the disability caused and for loss of amenities and enjoyment of life. The Tribunal awarded a compensation of Rs.21000/- for the disability caused. The Tribunal took the monthly income of the claimant as Rs.2500/-, adopted a multiplier of 14 and took the percentage of disability as 5%. Ext.A7 certificate of disability issued by the Asst. Professor of the Department of Orthopaedics, Medical College Hospital, Thrissur, shows that the claimant has suffered a permanent disability of 14%. She has now the following disabilities: “10° varus deformity of right leg, tenderness and irregularity at the fracture site, malunion of right tibia with right knee flexion 90° knee extension 10° short of full (right) weakness of, quadriceps (right) muscles of grade 4 dulling of sensation over the dorsum and lateral aspect of foot and leg right, terminal limitation of the ankle movement (right) and deep tenderness over the right fibular side.” In the light of the above disabilities suffered by the claimant, we feel that her percentage of disability can be fixed as 10%. The monthly income of the claimant taken by the Tribunal as well as the multiplier adopted are not seriously challenged. Thus calculated, for the M.A.C.A. 902 of 2010 4 disability caused, the claimant is entitled to an additional compensation of Rs.21,000/-. 8. The Tribunal did not award any compensation for the loss of amenities and enjoyment of life. Taking into consideration the nature of the injuries sustained and the disability caused to the claimant, we feel that for loss of amenities and enjoyment of life, a compensation of Rs.10,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 9. Thus the claimant is entitled to an additional compensation of Rs.31,000/-. She is entitled to interest @ 8% per annum 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/-