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 16TH MARCH 2010 / 25TH PHALGUNA 1931 MACA.No. 701 of 2004(D) ------------------------------------ [AGAINST THE JUDGEMENT/ORDER IN O.P(MV).NO.231/1995 DATED 27/01/2004] .................... APPELLANT/PETITIONER: ------------------------------------- RAJAN ABRAHAM, S/O. ABRAHAM, CHEMMAPALLIL HOUSE, MANJOOR P.O., KOTTAYAM-686 603. *ADDL. APPELLANTS 2 TO 4 IMPLEADED: 2. RACHEL RAJAN, AGED 47, W/O. LATE RAJAN, CHEMMAMPALLIL HOUSE, MANJOOR.P.O., NOW RESIDING AT OLD K.K. ROAD, MANARKAD.P.O., MANARKAD. 3. LOVIN.C. RAJAN, AGED 27, S/O. LATE RAJAN, CHEMMAMPALLIL HOUSE, MANJOOR.P.O., OLD K.K. ROAD, MANARKAD.P.O., MANARKAD. 4. LINTA C. RAJAN, AGED 23, D/O. RAJAN, CHEMMAMPALLIL HOUSE, MANJOOR.P.O., OLD K.K. ROAD, MANARKAD.P.O., MANARKAD. *ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DATED 24/02/2010 IN I.A. NO. 496/2010. BY ADV. SRI.MATHEWS K.PHILIP. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. M. KUNJACHAN VARGHESE, S/O. LATE M.C. VARGHESE, XXXV/2219, KARIMPATTA ROAD, COCHIN-16. M.A.C.A. NO. 701/2004-D: 2. SALIMON, S/O. KURUVILLA, URUMBIL HOUSE, KOOTHATTUKULAM, MOOVATTUPUZHA. 3. NATIONAL INSURANCE COMPAY LIMITED, AISWARYA COMPLEX, POST BOX NO.1, THODUPUZHA-685 584. 4. BABY JOSEPH, KAKKUZHIYIL HOUSE, VAZHAKKULAM. 5. BABU, S/O. MATHEW, ATHANIKKAL HOUSE, TRIPPUNITHURA, NADAMA VILLAGE. 6. UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, FIRST FLOOR, KANDOTH BUILDINGS, KACHERITHAZHAM, MOOVATTUPUZHA-686 661. R2 BY ADV.SRI.JAMES ABRAHAM (VILAYAKATTU), R3 BY ADV.SRI.LAL GEORGE, R6 BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 701 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 16th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV) No.231 of 1995 of Motor Accidents Claims Tribunal, Muvattupuzha challenges the judgment and award of the Tribunal dated January 27, 2004 awarding a compensation of Rs.1,29,500/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these :- The claimant was aged 33 at the time of the accident. He was working as a Transporting Contractor and earning Rs.2,000/- per month, according to him. On November 13, MACA 701/2004 2 1991 at 6.45 p.m. the claimant was pillion riding on a motor cycle baring registration No.KEE 5360, ridden by the 5th respondent along Kaloor-Kalloorkadu road. At that time another motor cycle bearing registration No.KCF 7584, driven by the second respondent, came at a high speed from the opposite direction and dashed at the motor cycle on which the claimant was travelling. The claimant sustained serious injuries. According to the claimant, accident occurred due to the negligence of riders of both the motor cycles. Respondents 2 and 5 as the riders, respondents 1 and 4 as the owners and respondents 3 and 6 as insurers of the offending vehicles are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.6,66,000/-. 3. First respondent, owner of the motor cycle bearing registration No. KCF 7584 and respondents 4 and 5, the owner and rider of the motor cycle on which the claimant was travelling remained absent and were set ex parte by the Tribunal. The second respondent, rider of the motor MACA 701/2004 3 cycle bearing registration No.KCF 7584 filed a written statement, admitting the accident and contending that the accident occurred due to the negligence on the part of the fifth respondent rider of the other motor cycle. The third respondent the insurer of the motor cycle KCF 7584 filed a written statement admitting the policy. The sixth respondent, insurer of the motor cycle on which the claimant/appellant was travelling filed written statement admitting the policy and contending that the accident occurred due to the negligence on the part of the rider of the other motor cycle. 4. PW1 was examined and Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the contesting third respondent. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the negligence on the part of the fifth respondent rider of the motor cycle on which the claimant was pillion riding and awarded a compensation of Rs1,29,000/- against respondents 4 to 6. MACA 701/2004 4 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 third respondent, Insurance Company. 6. The Tribunal awarded a total compensation of Rs.1,29,000/-. The break up of the award amount is as under : Loss of earning : Rs.8,000/- Transportation expense : Rs.1,500/- Extra nourishment : Rs.5,000/- Medical expenses : Rs.25,000/- Pain and sufferings : Rs.25,000/- Compensation for permanent : Rs.65,000/- disability. -------------------- Total : Rs.1,29,500/- ======== 7. The learned counsel for appellant sought enhancement of compensation for the disability caused and for the loss of amenities and enjoyment of life. 8. The claimant sustained the following injuries, as revealed from Ext.A2 copy of the wound certificate issued from Medical Centre Hospital, Ernakulam:- MACA 701/2004 5 “1) Crush injury right foot with extensive laceration between 2nd and 3rd toes. 2) Lacerated injury (R) hand with fracture matacarpal middle finger (compound fracture). 3) Abrasion (L) knee/(R) knee/(R) leg.” Ext.A1 is the disability certificate issued by an Orthopaedic Surgeon of District Hospital, Kottayam which shows that the claimant has permanent disability of 42%. A copy of Ext.A1 is made available to us for perusal. It shows that the claimant has the following disabilities:- “1) Chronic non-healing ulcer on the sole of foot. 2) Pesplannus (flat foot due to collapse of the longitudinal and transverse arches of the foot) with ankylosis of tarso metarsal joints - 19%. 3) Ankylosis of greater toe - 7%. 4) Hammer toe big toe and 2nd toe - 2% . 5) Ankylosis of ankle - 90 degree - 12%. 6) Boutennaire deformity of right middle finger - 2% . Total disability is assessed as 42%. The Tribunal assessed MACA 701/2004 6 his disability as 21% and adopted a multiplier of 13 and awarded a compensation of Rs.65,000/- for the disability caused. His monthly income was taken as Rs.2,000/-. Taking into account the certificate of disability Ext.A1 and the evidence of PW1, we feel that the percentage of disability can be reasonably fixed as 30%. The monthly income of the claimant assessed by the Tribunal as Rs.2,000/- per month is not seriously challenged. The claimant was aged only 33 at the time of the accident, as seen from Ext.A2 copy of the wound certificate. But, the Tribunal took his age as 45 as seen in Ext.A1. It is clear from the above fact that he was aged below 45 at the time of the accident. Therefore, proper multiplier to be adopted is 17 in this case. Thus, calculated for the loss of dependency, the claimant is entitled to a compensation of Rs.1,22,400/- (Rs.2,000/- x 12 x 17 x 30%). Thus, the claimant is entitled to an additional compensation of Rs.57,400/- on this count. 9. Towards loss of earnings Rs.8,000/- was awarded MACA 701/2004 7 i.e., at the rate of Rs.2,000/- per month for four months. The learned counsel for the appellant/claimant argued that the claimant is now unable to do any work and he was hospitalized for five months and therefore, at least Rs.10,000/- may be awarded for the loss of earnings. Ext.A2 shows that he was laid up in the hospital for five months. Therefore, towards loss of earning, the claimant is entitled to Rs.10,000/-. Thus, the claimant is entitled to additional compensation of Rs.2,000/- on this count. Regarding compensation granted under other heads also, we find the same just and proper and therefore, we are not disturbing the same. 10. In the result, the claimant is found entitled to Rs.59,400/- as additional compensation. He is entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. The sixth 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 MACA 701/2004 8 claimant. 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.