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 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 MACA.No. 288 of 2005() ---------------------- OPMV.842/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): PETITIONER/APPELLANT ---------------------------------- GIRIJA W/O. MOHANDAS, AGED 35 YEARS, VALIYAPURAYIL HOUSE, NEAR SYNDICATE BANK, P.O.KOYILANDY KOYILANDY AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): RESPONDENT ------------------------- 1. A.ASSAIN S/O. IMBICHAMMED HAJI, KANDIYIL HOUSE, KUNNAMANGALAM, KOZHIKODE (R.C.OWNER AND DRIVER OF KL-11-C-5929 LORRY) PIN-673 571. 2. NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, MANNUAL SONS TOWERS, G.H.ROAD, CALICUT-1, (POLICY NO.570300/98/630/2928 REN OF 97/6302568) 630435. (INSURER OF KL-11-D 2223 BUS) 3. K.M.USMA RIYALU, AGE NOT KNOWN, S/O. K.M.RIYALU, ILLATH HOUSE, RARICHAN RAOD, POST ERANHIPALAM, CALICUT -6, PIN 673 006 (R.C.OWNER OF KL-11-D 2223 BUS) 4. BIJU.K S/O. DIVAKARAN K., AGE NOT KNOWN KANNAMBALATH HOUSE, RARICHAN ROAD, ERANHIPALAM, CALICUT-6, PIN 673 006 (DRIVER OF KL-II-D 2223 BUS) 5. NATIONAL INSURANCE CO.LTD., PARCO TOWER 4TH FLOOR P.M.TAJ ROAD, CALICUT 673 001 (POLICY NO.570300/1999/6300077 REN-1998/6300081) 632475) ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 & 5 SRI.P.JACOB MATHEW FOR R2 & 5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.288 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.842/1999 on the file of Motor Accidents Claims Tribunal, Vadakara. She sustained the following injuries in a motor accident that occurred on July 4, 1999 at about 6.45 a.m.: 1. Comminuted inter condylar fracture right humerus. 2. Fracture shaft of humerus right hand. 3. Lacerated wound 15 x 10 cm. on the outer angle of right elbow. 4. Lacerated wound 8x 3 cm. size in part angle of right elbow. 5. Lacerated wound 8 x 3 cm. on the anteromedial of right arm. 6. Lacerated wound 7 x 3 cm. in the right shoulder. 7. ORIF ( Operation Reduction and Internation Fixation with twelve hole reconstruction plate) 8. Headache. 9. Backache. 10. Pain all over the body. 2. The accident happened while the claimant was travelling in the bus bearing Reg.No.KL-11-D-2223 from Nadakkavu to Koyilandy, it dashed against a lorry bearing Reg.No.KL-11-C-5929 driven by the MACA.No.288/2005 2 first respondent. . Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 3,00,000/-. 3. Respondents 1 and 2 are the driver and insurer of the offending lorry. Respondents 3 to 5 are the owner, driver and insurer of the bus in which the claimant was travelling. Respondent Nos. 1, 3 and 4 remained absent before the Tribunal. The second and fifth respondents filed written statements admitting the policy of the respective vehicles. 4. PW1 was examined and Exts.A1 to A14 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the fifth respondent. No evidence was adduced by the second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by first respondent and awarded a compensation of Rs.1,32,050/- with interest @ 6% per annum from the date of petition till realisation and a cost of Rs. 3,500/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.288/2005 3 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 first 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 break up of the compensation awarded is as under : Pain and suffering - Rs. 15,000/- Loss of amenities - Rs. 3,000/- Loss of earning - Rs. 4,500/- Transportation - Rs. 2,000/- Extra nourishment - Rs. 2,000/- Damage to clothing - Rs. 250/- Medical expenses - Rs. 8,500/- Disability - Rs. 91,800/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for loss of amenities and enjoyment of life and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 30% as certified by the Medical Board in Ext.A14, adopted a multiplier of 17 as the claimant MACA.No.288/2005 4 was aged 25 at the time of the accident and awarded Rs. 91,800/- for the disability caused. According to the claimant, she was working as Collection agent with Chemmannur Fashion Jewellers earning Rs. 3,000/- per month. Ext.A12 is the certificate issued by her employer. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,000/-. The percentage of disability as 30% and the multiplier of 17 taken by the Tribunal are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 1,22,400/- ( 30% % x 2000 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.30,600/-. 10. The Tribunal awarded Rs.3,000/- for loss of amenities and enjoyment in life, which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensated of Rs. 10,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. There is another aspect in this case. The Tribunal awarded MACA.No.288/2005 5 Rs. 4,500/- towards loss of income for 3 months @ Rs. 1,500/- per month. As we have fixed the monthly income of the deceased as Rs. 2,000/-, he is entitled to a compensation of Rs. 6,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 1,500/-. 12. The total amount awarded under various heads comes to Rs. 1,27,050/-. But the Tribunal awarded Rs. 1,32,050/-. Therefore, the amount awarded by the Tribunal is corrected as Rs. 1,27,050/-. 13. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 14. In the result, the amount awarded by the Tribunal is corrected as Rs.1,27,050/-. The claimant is entitled to an additional compensation of Rs. 39,100/-. She is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation and proportionate cost. The second respondent being the insurer of the MACA.No.288/2005 6 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.288/2005 7