IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 MACA.No. 678 of 2003() ---------------------- OPMV.311/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER/CLAIMANT: -------------------------------------------- TOBAN, S/O. KORA, ILLIPARAMBIL HOUSE, OONNUKAL P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SMT.E.V.MOLY RESPONDENT(S): RESPONDENTS: --------------------------- 1. SHAIK ISMAIL, ALAMKULAM HOUSE, MANARY, PAYIPRA. 2. SUNILKUMAR, S/O. GOPALAN, KAROTTUVEETTIL, THRIKARIYOOR VILLAGE & KARA, MUVATTUPUZHA. 3. MANAGER, NEW INDIA ASSURANCE CO.LTD., MUVATTUPUZHA. ADV. SRI.P.MURALEEDHARAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA 678/2003 JUDGMENT CM APPLN. 2078/2009 NONE APPEARS FOR THE PETITIONER. CALLED THE NAME OF THE PARTIES. ABSENT. DELAY PETITION IS DISMISSED FOR DEFAULT. APPEAL CONSEQUENT TO THE DISMISSAL OF THE THE APPLICATION FOR CONDONATION OF DELAY, APPEAL IS ALSO DISMISSED. SD/- P.R.RAMAN, JUDGE SD/- P.R.RAMACHANDRA MENON, JUDGE. /TRUE COPY/ P.A. TO JUDGE. V. RAMKUMAR & P.Q.Barkath Ali JJ. = = = = = = = = = = = = = M.A.C.A. No.678 of 2003 = = = = = = = = = = = = = = Dated this the 21 st day of December, 2011 JUDGMENT Ramkumar J In this appeal filed under Section 173 of the Motor Vehicles Act, 1988, the original appellant sought enhancement of the compensation awarded to him by the MACT, Muvattupuzha in O.P.(M.V.)No.311/1999. Pending this appeal the original appellant died and his legal representatives were impleaded as additional appellants 2 to 4. 2. On 13.05.1996 at 9 pm the deceased/1st appellant (Toban) was riding a motorcycle along the Aluva-Munnar road. While so, an autorickshaw which came from the opposite direction in a rash and negligent manner collided with the motorcycle resulting in the deceased sustaining multiple lacerations of both forearms, laceration over the right eye brow, swelling and tenderness with deformity over left thigh, fracture of left fibula and tibia, fracture of left femur and fracture of distal phalanx of left index finger. He had undergone a total M.A.C.A. No. 678 of 2003 2 period of 148 days of hospitalization. The 1st appellant preferred the above O.P.(M.V) claiming a total amount of `16,00,000/- (Rupees sixteen lakh only) as compensation. The 1st appellant was, on the date of the accident, aged 35 years and running a textile business. He claimed a monthly income of `5,000/-. 3. The tribunal fixed the monthly income at `1,500/- and awarded a sum of `13,000/- towards loss of earnings for one year. `17,500/- towards transportation charges, `1,500/- towards damage of clothing and articles, `1,50,000/-towards medical expenses, `40,000/- towards the compensation for pain and suffering, `15,000 towards disability compensation. The tribunal accordingly awarded a total amount of `2,58,000/- to the appellant. Since the driver of the autorickshaw was not having a badge, the tribunal directed the insurance company to pay the award amount and to recover the same from the owner and driver. It is dissatisfied with the said award that the 1st appellant preferred this appeal. Pending this appeal the 1st appellant died in the year 2007 and his widow, minor son and minor daughter were impleaded as supplemental appellants 2 to 4. M.A.C.A. No. 678 of 2003 3 4. We heard the learned counsel appearing for the appellants and the learned counsel appearing for the 3rd respondent/Insurance company. The liability of the insurer is admitted. 5. When the fact that the appellant was running a textile shop business was not specifically disputed by the contesting respondents, the tribunal below was not justified in fixing his monthly income at `1,500/-. Having regard to the judicial pronouncements on the question, we fix a sum of `3,000/- as the monthly income of the 1st appellant. The tribunal rightly adopted 16 as the multiplier. Ext.A1 disability certificate showed that the appellant had 44% disability on account of the injuries sustained to his left leg. The tribunal, however, took only 5% disability for the purpose of computation. Since 44% disability assessed by the doctor (examined as PW5) in Ext.A11 certificate is not the whole body disability, we are inclined to take 20% as the disability applicable to the 1st appellant. Accordingly, the total disability compensation which will be due to the 1st appellant will be `1,15,200/-. Deducting the sum of `15,000/-(Rupees fifteen thousand only) awarded by the tribunal below the enhancement M.A.C.A. No. 678 of 2003 4 of disability compensation will come to `1,00,200/- (Rupees one lakh two hundred only). We notice that no amount had been awarded by the tribunal below by way of disfiguration, shortening of the leg and deformity over the left thigh of the 1st appellant. Taking this matter into account we fix `10,000/- as the compensation due to the 1st appellant by way disfiguration. Similarly, the tribunal awarded only a sum of `13,000/- by way of loss of earnings for the period of one year reckoning the monthly income of the 1st appellant at `1,500/-. Since we have found that the monthly income of the 1st appellant was `3000/-., he would be entitled to a sum of `36000/-(Rupees thirty six thousand only) by way of partial loss of earnings. Deducting the sum of `13,000/- therefrom, an enhancement of `23,000/-(Rupees twenty three thousand only) is due to the supplemental appellants 2 to 4 on that score. Thus the total amount by way of enhanced compensation due to supplemental appellants 2 to 4 will be `1,33,200/-(Rupees one lakh thirty three thousand two hundred only). The said amount shall bear interest at a rate of 7.5% per annum from the date of O.P.(M.V.) till realisation. In the absence of a challenge by the owner and driver, we do not M.A.C.A. No. 678 of 2003 5 interfere with that part of the award as per which the insurance company has been directed to pay the award amount and recover the same from the owner and driver of the autorickshaw. The Insurance Company shall deposit the aforesaid amount within two months from today. This appeal is allowed as above with proportionate costs. Dated this the 21st day of December, 2011 V. RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sj