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 16TH JUNE 2011 / 26TH JYAISHTA 1933 MACA.No. 808 of 2007() ---------------------- OPMV.1017/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER IN OP(MV): ----------------------------------- RAJEEV.K., S/O.ALEXANDER, KANJIRATHINKAL HOUSE, KANDANAD P.O., VIA.TRIRUVAMKULAM.(DIED) ADDITIONAL APPELLANTS 2. AMMINI ALEXANDER, W/0 ALEXANDER KANJIRATHINKAL HOUSE, CHITHRA NAGAR NO.69, ATHIRAKANDATHIL ROAD TRIPUNITHURA 3. BABU ALEXANDER, S/O ALEXANDER KANJIRATHINKAL HOUSE, CHITHRA NAGAR NO.69, ATHIRAKANDATHIL ROAD, TRIPUNITHURA 4. LAILA GEORGE, D/O ALEXANDER - DO- -DO- 5. SHEELA, D/O ALEXANDER - DO - - DO- 6. USHA, D/O ALEXANDER - DO - -DO- 7. ANIL, S/O ALEXANDER - DO - -DO- BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH MACA.NO.808/2007 RESPONDENT(S): RESPONDENTS IN OP(MV): ------------------------------------- 1. M.A.IBRAHIMKUTTY, MANAPPURATH HOUSE, ALANGAD P.O., PANAIKULAM, NORTH PARAVUR. 2. P.J.ANTONY, PALAKKAPARAMBIL HOUSE, CHIRAYAM P.O., PANAIKULAM, N.PARAVUR. 3. UNITED INDIA INSURANCE CO. LTD., M.G.ROAD, KOCHI 16. ADDITIONAL APPELLANTS IMPLEADED AS PER ORDER DATED 3/6/2010 IN I.A.NO.1285/2010 ADV. SRI.A.A.MOHAMMED NAZIR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.808 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2011 JUDGMENT Barkath Ali, J. Deceased first appellant is the claimant in O.P.(MV) No.1017/1999 on the file of Motor Accidents Claims Tribunal, Ernakulam. During the pendency of the appeal, on February 9, 2010, the appellant died. His mother, brothers and sisters were impleaded as additional appellants 2 to 7 in this appeal. The deceased first appellant challenged the judgment and award of the Tribunal dated November 8, 2006 awarding a compensation of Rs.52,500/- to him for the injuries sustained by him in the motor accident. 2. The accident happened on October 6, 1998 at about 6 p.m. While the deceased first appellant was riding the motor cycle bearing Reg.No.KLM/1070 along Vytilla-Aroor Byepass road, he was knocked down by the bus bearing Reg.No.KL-7/F 0596 driven by the second respondent. The deceased first appellant sustained serious injuries. He was aged 45 and was working as a Filed Representative in a private MACA.No.808/2007 2 firm earning Rs.5,000/- per month. Alleging negligence against the second respondent, the deceased first appellant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs.4 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending bus remained absent before the Tribunal. The third respondent, the insurer of the offending bus filed a written statement admitting the policy, but attributed negligence to the deceased first appellant. 4. Pws 1 and 2 were examined and Exts.A1 to A14 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the first respondent and also there was 25% contributory negligence on the part of the deceased claimant and assessed a compensation of Rs. 70,000/- and awarded a compensation of Rs.52,500/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal MACA.No.808/2007 3 regarding contributory negligence. 5. Heard the counsel for the appellants and the counsel for the Insurance Company. 6. The accident was not disputed. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was 25% contributory negligence on the part of the deceased first appellant can be sustained ? 2. Whether the appellants are entitled to any enhanced compensation ? 7. The Tribunal found that there was 25% contributory negligence on the part of the deceased first appellant on the ground that the accident occurred while the deceased first appellant attempted to overtake a lorry and happened to be on the wrong side of the road. For several reasons we find that the above finding of the Tribunal cannot be sustained. The police has charged the case against the first respondent. Ext.A2 is the copy of the charge sheet. Before the Criminal Court, first respondent pleaded guilty and was convicted and sentenced as evidenced by Ext.A11 copy of the judgment of JFCM, Ernakulam. There is no contra evidence on the side of the contesting third MACA.No.808/2007 4 respondent Insurance Company to prove otherwise. Therefore, we feel that the accident happened only due to the negligence of the first respondent. The finding of the Tribunal on this point is set aside. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs.70,000/-. 8. The Tribunal assessed a total compensation of Rs.70,000/-. The break-up of the compensation assessed is as under : Transportation, hospitalisation, attendant expenses, extra nourishment & damage to clothing - Rs. 4,000/- Medical expenses - Rs.14,900/- Loss of income for 3 months - Rs. 6,000/- Pain and suffering - Rs.20,000/- Loss of amenities, comforts and pleasures of life consequent on the neurological disability - Rs.25,000/- 9. The appellant sustained the following injuries in the accident : 1. Bleeding from the left ear. 2. Abrasion on the forehead and foot. 3. Subarchnoid haemorrhage with bilateral temporal subdural haematoma. 4. Fracture through ( L) temporal bone including Detro Mastoid. 10. In Ext.A10 certificate issued by the Medical Board, it is MACA.No.808/2007 5 certified that he has suffered a disability of more than 50%. As directed by this court, the deceased first appellant appeared before the Medical Board and the Medical Board had assessed his disability at more than 50%. The certificate of the Medical Board is marked as Ext.X1. The deceased first claimant has now the following disabilities : Mood symptoms, poor insight, flight of ideas and impaired judgment. MRI scan of brain showed gliosis with encephalo malectic changes involving temporal and frontal areas of brain on both sides highly suggestive of post traumatic sequalae, associated with diffuse cerebral atrophy. 11. The Tribunal awarded Rs. 25,000/- for loss of amenities and enjoyment in life and for the disability caused which appear to be very low. The Tribunal took the monthly income of the claimant as Rs.2,000/-. But Ext.A14 the certificate issued by his employer shows that he was working as a Field Representative in a private concern drawing a salary of Rs.5,000/- per month. PW1 the deceased first claimant has also testified to that effect. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs.3,000/- which comes to Rs.36,000/- per annum. We have already MACA.No.808/2007 6 found that 50% disability assessed by the Medical Board is reasonable. The deceased first claimant died on 9/2/2011. The accident occurred on October 6, 1998. Therefore, we feel that a multiplier of 12 would be reasonable in this case. Thus calculated for the disability caused, the deceased first claimant is entitled to a compensation of Rs.2,16,000/- ( 50% x 3000 x 12 x 12). Thus, the appellants are entitled to an additional compensation of Rs. 1,91,000/- on this count. 12. The Tribunal awarded Rs.14,900/- towards medical expenses. Taking into consideration the fact that for about 12 years he was under treatment, we feel that a compensation of Rs. 35,000/- covered by the entire bills Ext.A4 series and A15 would be reasonable. 13. The Tribunal awarded Rs.20,000/- for pain and suffering endured. Having regard to the nature of the injuries sustained by the deceased first appellant and that he was under treatment for 12 years, we feel that a compensation of Rs.50,000/- 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. MACA.No.808/2007 7 14. In the result, the appellants are found entitled to the entire compensation assessed by the Tribunal i.e. Rs.70,000/-. They are also entitled to an additional compensation of Rs. 2,41,100/- with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The entire compensation shall be disbursed to the second appellant, who is the mother of the deceased first appellant. The third 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. 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.808/2007 8