IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 MACA.No. 363 of 2008() ---------------------------------- OP(MV)NO .1509/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER -------------------------------------------------------------- BABU, AGED 49 YEARS, S/O.MADATHINGAL NARAYANAN, P.O.ERIYAD, MANJALAPILLY, KODUNGALLUR. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENT(S): RESPONDENTS -------------------------------------------------- 1. N.K.DILEEP, S/O.NEDUMPARAMBIL KRISHNAN, P.O.KANDAMKULAM, METHALA, KODUNGALLUR. 2. MURALI, S/O.THEKKUMTHOTTATHIL SUKUMARAN, P.O.AZHIKODE, MENON BAZAR, KODUNGALLUR. 3. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, MANAPPAT BUILDING, NORTH NADA, KODUNGALLUR. R3 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 363 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 22nd day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1509 of 2002 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated September 11, 2007 awarding a compensation of ` 53,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. According to the claimant, on August 30, 2002 while he was riding a motor cycle bearing registration No.KL-8/U 2113, he was knocked down by an auto-rickshaw bearing registration No.KBR 3749, driven by the second respondent. He sustained serious injuries. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 1,10,000/-. 3. Respondents 1 and 2, the owner and the driver of MACA 363/2008 2 the offending auto-rickshaw, filed a written statement denying the negligence of the second respondent. The third respondent, the insurer of the offending auto-rickshaw, filed a written statement admitting the policy. Exts.A1 to A6 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent and awarded a compensation of ` 53,000/- with interest @ 7 % p.a. from the date of petition till realization and proportionate cost. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the 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 of the second respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for MACA 363/2008 3 consideration, is whether the claimant is entitled to any enhanced compensation. 6. The claimant sustained bleeding from the ear and contusion left parietal area and also fracture left clavicle. The Tribunal awarded a total compensation of ` 53,000/-. Break up of the compensation awarded is as under:- Loss of income : ` 6,000 Medical expenses : ` 29,200 Hospitalization : ` 800 Pain and suffering : ` 12,000 Discomfort and loss of amenities : ` 5,000 ------------------ Total : ` 53,000 ======= 7. The counsel for the claimant sought enhancement of compensation for loss of amenities and enjoyment in life and for pain and suffering endured. He has pointed out that no compensation was awarded for the disability caused to the claimant. 8. The Tribunal did not award any compensation for the disability caused to the claimant. Ext.A5 disability certificate issued by the Medical Board would show that the MACA 363/2008 4 claimant has suffered a disability of 10%. The claimant has now left lower cranial nerve palsy of the facial nerve persisting. Therefore, we feel that the claimant is entitled to compensation for the disability caused. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/-, which appears to be very low. As he was aged 49 years we feel that his monthly income can reasonably be fixed as Rs.2,500/-. As he was aged 49 at the time of the accident, a multiplier of 13 would be reasonable in this case. Percentage of disability assessed by the doctor as 10% appears to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of ` 39,000/- . 10.The Tribunal awarded `12,000/- for pain and suffering endured by the claimant and ` 5,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained, we feel that a compensation of ` 20,000/- for pain and suffering and ` 15,000/- for loss of amenities and enjoyment in life would be MACA 363/2008 5 reasonable. 11. The Tribunal awarded a sum of `6,000/- towards loss of income for three months at the rate of `2,000/- per month. As we have fixed monthly income of the claimant as `2,500/-, he is entitled to a compensation of `7,500/- 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. 12. In the result, the claimant is found entitled to an additional compensation of `58,500/-. The Tribunal awarded interest only @ 7% per annum, which appears to be very low. The claimant is entitled to interest @ 7.5 % per annum from the date of petition till realization for the compensation already awarded and also for the enhanced compensation. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The third respondent Insurance Company is entitled to recover the compensation amount MACA 363/2008 6 awarded from the first respondent, the owner of the offending vehicle, as the second respondent driver has not renewed his badge after 2000. 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. mn