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 3RD JUNE 2010 / 13TH JYAISTHA 1932 MACA.No. 1415 of 2005() ----------------------- OPMV.1488/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER ---------------------------------- AMEER, S/O.KUNJIMOHAMMED, KALLATTU HOUSE, 26TH STONE, P.O.KOTHAPARAMBU, (AALA), VIA- KODUNGALLUR. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): REPONDENNTS -------------------------- 1. SHAJI C.K., S/O.BHASKARAN, C.K.HOUSE, HOSPITAL HILL, P.O.NILAMBUR, MALAPPURAM DISTRICT. 2. SANTHOSH T.K., S/O.KUTTAPPAN, THAYYIL HOUSE, KANUR P.O. 3. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, ARAFFA BUILDINGS, 2ND FLOOR, P.B.NOI.5, COURT ROAD, MANJERI-676 121. ADV. SRI.P.SAMSUDIN FOR R1 SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1415 of 2005 ------------------------------------------------------ Dated: JUNE 3, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1488/1998 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, challenges the judgment and award of the Tribunal dated February 24, 2005 awarding a compensation of Rs.2,29,124/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these: On February 1, 1998 at about 3.15 p.m. the claimant was pillion riding on the scooter bearing registration No.KRH 4447 along NH 47. It was ridden by the claimant in another original petition, OP No.26 of 1999. When they reached S.N.Puram village in front of S.N.Stores shop, a Maruthi Omni Van bearing registration No. KL-10/A 2986 driven by the 2nd respondent came at a high speed and dashed against the scooter. The claimant sustained serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 2nd respondent. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the M.A.C.A. 1415 of 2005 2 offending Maruthi van are jointly and severally liable to pay compensation to the claimant. He claimed a compensation of Rs.6 lakhs. Respondent No.4 is the owner of the scooter and respondent No.5 is its insurer. 3. Respondent No. 2, the rider of the offending scooter remained absent and was set ex parte by the Tribunal. The 1st respondent, owner of the scooter, filed a written statement admitting the accident, but denying the liability. The 3rd respondent, insurer of the Omni van, filed a written statement admitting the policy and further contending that there was also negligence on the part of the rider of the scooter. Respondent No.4, owner of the scooter, remained absent. Respondent No.5 as the insurer of the scooter filed a written statement admitting the policy and further contending that the accident occurred due to the negligence of the 2nd respondent. 4. This OP was jointly tried along with the OP 26/1999 filed by the other injured, the owner of the scooter of the claimant, claiming compensation. PWs.1 to 4 were examined and Exts.A1 to A23 were marked on the side of the claimant before the Tribunal. On the side of the contesting 3rd respondent Ext.B1 copy of the policy was marked. On an appreciation of evidence the Tribunal awarded a total compensation of Rs.2,29,124/-. The claimant has now come up in M.A.C.A. 1415 of 2005 3 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 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. 7. The claimant sustained the following injuries as revealed from Ext.A2, copy of the wound certificate: “comminuted fracture left femur, intertrochantric fracture left femur, comminuted fracture Meta 3rd left ulna, and fracture mandible.” Ext.A3 is the discharge card which shows that the petitioner was admitted in the hospital on 1.2.1998 and was discharged on 10.4.1998. Ext.A20 is the certificate of disability which shows that the claimant has suffered the following disabilities:- “1. Partial ankylosis of left knee with range of motion 180° line to 45° flexion. 2. Partial ankylosis of left hip with rotation exclusion of flexion and extension motion limited to are from 15° internal M.A.C.A. 1415 of 2005 4 rotation to 180° line. 3. Restriction of terminal 10° pronation supination movement of left forearm due to old ulnar shaft fracture. 4. Mal union of the trochanteric fracture is 10° varus angulation and one inch shortening of the left femur.” 8. The Tribunal awarded a total compensation of Rs.2,29,124/-. The break up of the compensation awarded is as under:- loss of earnings for 9 months @ Rs.3000/- p.m. - Rs.27,000/- extra nourishment and wages to attendants - 7,300/- transport to hospital - 500/- medical expenses - 60,824/- pain and suffering - 15,000/- loss of amenities and happiness in life - 7,500/- permanent disability (Rs.3000 x 12 x 15% x 15) - 81,000/- difference of loss of earning power - 30,000/- 9. The Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs.3000/-, took the percentage of disability as 15%, adopted a multiplier of 15 as he was aged 43 at the time of the accident and awarded Rs.81,000/- for the disability caused. The claimant was a driver who is working abroad. Taking M.A.C.A. 1415 of 2005 5 into consideration this aspect we feel that his monthly income can be reasonably assessed at Rs.4500/-. The percentage of disability assessed by the Tribunal and the multiplier adopted are not seriously challenged. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.1,21,500/- (Rs.4500 x 12 x 15 x 15%). Thus on this count the claimant is entitled to an additional compensation of Rs.40,500/-. 10. There is another aspect in this case. Towards loss of earnings, the Tribunal awarded a compensation of Rs.27,000/- i.e. for nine months at the rate of Rs.3000/- per month. We have fixed the monthly income of the claimant as Rs.4500/-. Therefore towards loss of earnings, he is entitled to a compensation of Rs.40,500/-, i.e. an additional compensation of Rs.13,500/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. Thus the claimant is entitled to an additional compensation of Rs.54,000/-. He is entitled to interest @ 7.5% per annum for the amount already awarded and for the additional compensation awarded 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 M.A.C.A. 1415 of 2005 6 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/-