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 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 MACA.No. 1696 of 2004() ----------------------- OPMV.2997/2004 of II ADDL. M.A.C.T., KOZHIKODE .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- O.ALIKOYA S/O. CHEKKU, OTHAYOTH HOUSE, KARUVANNUR POST, NADUVANNOOR, KAVUNTHARA, KOZHIKODE. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENT(S): RESPONDENTS -------------------------- 1. A.U.BABY, S/O. GEORGE, ATHOOR HOUSE, NADKKAVU POST, KOZHIKODE. 2. MOHANAN, S/O. KELAPPAN, KOLIYIL HOUSE, KALPATHOOR POST, KOZHIKODE. 3. M/S. UNITED INDIA INSURANCE COMPANY LTD. DIVISIONAL OFFICE, WHITE LINES BUILDINGS, KALLI ROAD, KOZHIKODE. ADV. SRI.S.ARUN RAJ FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1696 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of September, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.2997/1994 on the file of II Addl. Motor Accidents Claims Tribunal, Kozhikode. He sustained the following injuries in a motor accident that occurred on May 17, 1994. Swipe injury (compound) supracondylar- intercondylar fracture ( Rt.) humerus fracture/upper 3rd Humerus. Fracture ulna, compound dislocation ( Rt) elbow joint, Extensive lacerated wound around the elbow with contamination and doubtful vascularity ( Rt) forearm. 2. The accident happened while the claimant was travelling in a bus bearing Reg.No.KL-11/B-3706, it collided head on with another bus bearing Reg.No.KL-11/7704 . Alleging negligence against the second respondent, the driver of the bus bearing Reg.No.KL-11/B 3706, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the MACA.No.1696/2004 2 offending bus remained absent before the Tribunal. The third respondent, the insurer of the offending bus filed a written statement admitting the policy. 4. PW1 was examined and Exts.A1 to A12 and Ext.C1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by second respondent and awarded a compensation of Rs. 88,900/- with interest @ 9% 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. 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 second 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. MACA.No.1696/2004 3 7. The break up of the compensation awarded is as under : Disability - Rs. 45,900/- Pain and suffering - Rs. 15,000/- Loss of amenities - Rs. 6,000/- Medical expenses - Rs. 11,000/- Loss of income - Rs. 6,000/- Other counts - Rs. 5,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for loss of amenities and enjoyment of life and for pain and suffering endured. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 15% and adopted a multiplier of 17 and awarded Rs. 45,900/- for the disability caused. Claimant was an auto rickshaw driver. Ext.A5 is his driving licence. Therefore, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. In Ext.C1, the Medical Board has certified that the claimant has a disability of 20%. Counsel for the claimant has produced copy of the certificate issued from the Medical College Hospital, Kozhikode showing that claimant has disability of 30%. It is stated there in that the claimant has osteomyelitis and dis- changing sinus, Ankylosed ( Rt) Elbow in 90, fore arm in supination MACA.No.1696/2004 4 shoulder movements only upto 60, rotations limited and he cannot continue the original vocation ( Auto driver/Tapping). Taking into consideration the above aspects, we feel that 20% disability assessed by the Medical Board in Ext.C1 can be accepted. The Tribunal took the multiplier of 17. But we feel that the proper multiplier that can be adopted in this case is 16 as the claimant was aged 35 at the time of the accident. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 96,000/- ( 20% x 2500 x 12 x 16). Thus on this count, the claimant is entitled to an additional compensation of Rs.50,100/-. 10. The Tribunal awarded Rs.6,000/- for loss of amenities and enjoyment in life and Rs. 15,000/- for the pain and suffering endured by the claimant which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 10,000/- for the loss of amenities and enjoyment in life and Rs. 20,000/- for pain and suffering endured would be reasonable on this count. 11. The Tribunal awarded Rs.6,000/- towards loss of income for four months @ Rs. 1,500/- per month. As we have fixed the MACA.No.1696/2004 5 monthly income of the claimant as Rs. 2,500/-, he is entitled to a compensation of Rs. 10,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 4,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 63,100/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third 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 sv. MACA.No.1696/2004 6 MACA.No.1696/2004 7