IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 MACA.No. 323 of 2004 ------------------------------- (O.P(MV).NO.1926/1994 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM) .................... APPELLANT/PETITIONER: -------------------------------------- SMT.FATHIMA AMANULLA, W/O. AMANULLA, NISHATH, BEHIND N.H MOSQUE, SOUTH KALAMASSERY, COCHIN-22. BY ADV. SRI.P.CHANDY JOSEPH. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. V.M.SULAIMAN S/O. MYTHEEN, VELLOORKODATH HOUSE, ALUPPURAM, UDYOGAMANDAL P.O., ELOOR. 2. P.K.ISMAIL, S/O. KUTTY, MANGATHUKUDY HOUSE, NEAR KUTHIRAPARAMBU MOSQUE, MANJAPETTY, MARAMPILLY, ALUVA. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, MUNCIPAL OFFICE ROAD, ELOOR SOUTH, UDYOGAMANDAL P.O., PIN- 683 501. 4. N.K.NAZEER, NANANTHAN HOUSE, CARCORNDAN ROAD, SOUTH KALAMASSERY. 5. C.A.ALI S/O. ABOOBACKER, THARAKANDATHIL HOUSE, NEAR SANTHI NAGAR, SOUTH KALAMASSERY 6. ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, P.B.NO.49, PATTAMARA BUILDING, RAILWAY STATION ROAD, ALWAYE. R3 BY ADV. SRI.M.A.GEORGE, R6 BY SRI. MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 323 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 16th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P. (MV) No.1926/1994 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated July 17, 2001 awarding a compensation of Rs.2,30,750/- for the loss caused to the claimant on account of the injuries sustained by her in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was a lady, aged 43 at the time of the accident and used to earn Rs.4,000/- per month as a teacher, according to the claimant. On April 3, 1994 at 4 p.m. the claimant was travelling in a car bearing registration No. KL-7C-4775 along Vytila – Aroor road. At that time a lorry bearing registration No. KRV 4662, driven by the second respondent, came at a high speed from the MACA 323/2004 2 opposite direction dashed against the car in which the claimant was travelling. The claimant sustained serious injuries. According to her, the accident occurred due to the rash and negligent driving of the offending lorry by the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs. 10 lakhs 3. Respondents 1, 2, 4 and 5 remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending lorry, filed a written statement, admitting the policy and further contended that the accident occurred due to the negligence of the driver of the car. The sixth respondent, insurer of the car in which the claimant was travelling, filed written statement admitting the policy and further contended that the accident occurred due to the negligence on the part of the driver of the lorry. 4. PWs.1 to 5 were examined and and Exts.A1 to A14 MACA 323/2004 3 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the respondents. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs.2,30,750/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for third respondent 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 second respondent, driver of the offending lorry, 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 Exts.A5 discharge card and A14 wound certificate:- “1) Lacerated wound rt. Upper eyelid 5 x 2 x 2 cm. 2) Incised wound rt. cheek 5 x 2 cm. Vertically. MACA 323/2004 4 3) Multiple small incised wounds over the posterior aspect of the rt. Elbow. 4) Multiple abrasions rt. upper arm rt. forearm, chin. 5) Swelling and deformity rt. Thigh. 6) Patient is unconscious Rt. pupil dialated and fixed. 7) Severe head injury. 8) Brain stem injury and diffused brain injury.” C.T. Scan showed pin-point haemorrhage in the brain stem and another pin-point haemorrhage frontal region with severe brain ox oedema with squashing of cistern.She was laid up in the hospital for 111 days. 8. The Tribunal awarded a total compensation of Rs.2,30,750/-. Break up of the compensation awarded is as under :- Transportation expense : Rs. 1,500/- Bystander's expense : Rs. 11,000/- Extra-nourishment : Rs. 5,000/- Damage to clothing : Rs. 500/- Treatment expenses : Rs. 87,705 Pain and sufferings : Rs. 35,000/- Neurological disability : Rs. 25,000/- MACA 323/2004 5 Physical disability : Rs. 10,000/- Disability caused : Rs. 35,000/- difficulties, discomfort and : Rs. 20,000/- other inconveniences in the enjoyment other normal life. -------------------- Total Rs.230,705/- Rounded to : Rs.2,30,750/- ======== 9. The learned counsel for appellant sought enhancement of compensation for the disability caused, loss of amenities and enjoyment in life and pain and suffering endured. He has also pointed out that no compensation was awarded for future treatment expenses. 10. The Tribunal awarded Rs.25,000/- for neurological disability, Rs.10,000/- for physical disability and Rs.35,000/- for disability caused to the right hand. The claimant was aged 43 and was earning more than Rs.4,000/-, as revealed from Ext.A13 employment certificate. Therefore, we feel that her monthly income can reasonably be fixed at Rs.3,000/-. Proper multiplier that can be taken is 14. 11. Ext.A3 is the treatment certificate and Ext. A8 is the MACA 323/2004 6 certificate of disability issued by PW3 doctor. It shows that the claimant sustained head injury, brain stem injury and fracture of femur. He testified that her memory was not normal and that she was not able to manage financial matters and giving tuition to children and she has lost capacity to take decisions. Therefore, the disability assessed by him at 15% appears to be reasonable. That being so, for the neurological disability caused, the claimant is entitled to a compensation of Rs. 75,600/- (Rs.3,000/- x 12 x 14 x 15%). Thus, on this count the claimant is entitled to an additional compensation of Rs.50,600/-. 12. Ext.A9 is the certificate of physical disability, which showed that the claimant was having shortening of right lower limb by 3 c.ms., wasting of right leg by 1 c.m., right thigh by 2 cms. She was limping on the right side and the patient was using surgical foot wear for correction of shortening of height. The doctor assessed her physical disability as 12%, which appears to be reasonable. Thus, for the physical disability caused, the claimant is entitled to a compensation of Rs.60,480/-. (Rs.3,000/- x 12 x 14 x 12%). Thus, on this count, MACA 323/2004 7 the claimant is entitled to an additional compensation of Rs.50,480/-. 13. Ext.A4 is the disability certificate issued by PW5 doctor, regarding the disability caused to her right eye. PW4 testified and also certified in Et.A4 thus:- “On opthalmological evaluation the patient had alternate convergent squint and hemianopia. The patient was reviewed on 11.06.'98 and she still had alternate divergent squint with right homonymous hemianopia. Because of this hemianopia the patient is highly incapacitated to do her routine work and she may be considered as having disability to the extent of 30 percent due to her opthalmic problems.” The percentage of disability assessed by PW3 was 30% appears to be reasonable. Thus, for the ophthalmological disability caused to her on account of the injuries sustained to her right eye, the claimant is entitled to a compensation of Rs.1,51,200/- (Rs.3,000/- x 12 x 14 x 30%). Thus, on this count, the claimant is entitled to an additional compensation of Rs.1,16,200/-. MACA 323/2004 8 14. The Tribunal awarded a compensation of R.35,000/- for pain and suffering. Taking into account the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.50,000/- would be reasonable for pain and suffering. Thus, on this count, the claimant is entitled to an additional compensation of Rs.15,000/-. 15. For the loss of amenities and enjoyment in life, Rs.20,000/- was awarded by the Tribunal. Taking into consideration the serious nature of the injuries sustained by the claimant, we feel that Rs.30,000/- would be reasonable on this count. Therefore, on this count, the claimant is entitled to an additional compensation of Rs.10,000/-. 16. There is another aspect in this case. No compensation was awarded for future treatment expenses. The nature of the injuries sustained by the claimant and the disabilities caused to her clearly shows that she has to spent considerable amount for future treatment. Therefore, we feel that a compensation of Rs.50,000/- would be reasonable for future treatment expenses. As regards the compensation awarded under other heads, we MACA 323/2004 9 find the same to be reasonable and therefore, are not disturbing the same. 17. In the result, the claimant is found entitled to an additional compensation of Rs.2,92,280/-. She is entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending lorry 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 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. MACA 323/2004 10 A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 323 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= JUDGMENT 16th day of June, 2010