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 10TH MARCH 2011 / 19TH PHALGUNA 1932 MACA.No. 160 of 2004() ---------------------- OPMV.368/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER IN OP.MV: ------------------------------------------------------- RADHAKRISHNAN, S/O.VISWAMBHARAN, PONNACHERY HOUSE, KODALY DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SRI.P.V.BABY, SRI.A.N.SANTHOSH. RESPONDENT(S): RESPONDENTS IN O.P.M.V. -------------------------------------------------------------------- 1. A.BALAN, S/O.A.ARJUNAN, MELAIDAI KUTTAI, KUMARAMANGALAM P.O., THIRUCEHNGODE TALUK, SALEM DISTRICT,TAMIL NADU. 2. K.P.SHANMUGHAM, S/O.PALANIYAPPA CHETTIAR, 4-C, THAILAMBIGAYI NAGAR, EAST, THIRUCHENGODE TALUK, SALEM DISTRICT,TAMIL NADU. 3. THE ORIENTAL INSURANCE CO.LTD., THIRUCHENGODE DISTRICT, SALEM DISTRICT,TAMIL NADU. 4. VINCENT DAVIS, S/O.DAVIS, CHUKKARIYAN HOUSE, KODALY, P.O.PADY. 5. M.A.JOHNY, MULLAKKAL HOUSE, INCHAKUNDU, CHENGALLUR P.O. 6. THE NEW INDIA ASSURANCE CO.LTD.,THRISSUR. R3 BY ADV. DR.ELIZABETH VARKEY R4 BY ADV. SRI.K.L.JOSEPH R6 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 160 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 10th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in M.V.O.P.No.368 of 1995 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated March 25, 2003 awarding a compensation of Rs.44,400/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on September 21, 1994 at midnight at Chemmanam Kunnu. While the claimant along with family members were travelling in a jeep bearing registration No.KL-8/D 7624, it collided head on with a lorry bearing registration No.TN 28/Y 3466, driven by the first respondent. He sustained serious injuries. Alleging negligence against respondents 1 and 4, the drivers of lorry and jeep respectively ,the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act MACA 160/2004 2 claiming a compensation of Rs.2,50,000/-. 3. Respondents 1 to 3 are the driver, owner and insurer of the lorry and respondents 4 to 6 are the driver, owner and insurer of the jeep. Respondents 1 and 4 drivers of both the vehicles remained absent and they were set ex parte by the Tribunal. Respondents 2, 3, 5 and 6 appeared before the Tribunal and filed their written statements. In the written statement filed by the second respondent he admitted the accident but denied the liability. In the written statement the third respondent admitted the policy of the lorry. The fifth respondent admitted the ownership of the jeep and contended that if the claimant was found entitled for compensation, it has to be paid by the insurer of the jeep. The sixth respondent in its written statement admitted the insurance policy of the jeep and contended that there was no negligence on the part of the fourth respondent. 4. The claimant was examined as PW1 and Exts.A1 to A9 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due MACA 160/2004 3 to negligence of drivers of both the vehicles and awarded a compensation of Rs.44,400/- with interest @ 9% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant/claimant and the learned counsel for the Insurance Companies. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of respondents 1 and 4, the drivers of both the vehicles involved in the accident, is not seriously 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 in the accident:- “1) Lacerated wound right fronto parietal area. 2) Lacerated wound over the chin. 3) Lacerated wound 2 x 5 cm. on the right side MACA 160/2004 4 of face. 4) Severe head injury. 5) Diffuse cerebral oedema. 6) Linear fracture of right parietal bone.” 8. The Tribunal awarded a total compensation of Rs.44,400/-. Break up of the compensation awarded is as under:- Loss of earning : Rs. 6,000 Transportation expenses : Rs. 1,000 Medical expenses : Rs. 11,700 Bystander's expenses : Rs. 500 Pain and suffering : Rs. 10,000 Loss of amenities : Rs. 5,000 discomforts suffered and inconvenience. Loss of earning power : Rs. 10,200 ------------------ Total : Rs. 44,400 ======= 9. Learned counsel for the claimant sought enhancement of the compensation for the disability caused and on other heads. 10. The Tribunal took the monthly income of the claimant as Rs.1,000/-, took the percentage of disability as 5%, adopted a multiplier of 17 and awarded a compensation MACA 160/2004 5 of Rs.10,200/- for the disability caused. According to the claimant, he was a businessman and was doing vegetable business earning Rs.3,500/- per month. Ext.A8 is his licence. Taking into consideration the above aspects, we feel that his monthly income can reasonably be fixed at Rs.3,000/-. In Ext.A6 medical certificate doctors assessed his permanent disability as 20%. The claimant has memory loss and weakness of limbs. Taking into consideration the above aspects, 5% disability taken by the Tribunal appears to be reasonable. Multiplier adopted by the Tribunal as 17 is not seriously challenged, as the claimant was aged 30 at the time of the accident. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.30,600/- (Rs.3,000/- x 12 x 17 x 5%). Thus the claimant is entitled to an additional compensation of Rs.20,400/- on this count. 11. The Tribunal awarded Rs.10,000/- for pain and suffering endured and Rs.5,000/- for loss of amenities and enjoyment in life. Taking in to consideration the nature of the injuries sustained by the claimant, we feel that a MACA 160/2004 6 compensation of Rs15,000/- for pain and suffering endured and Rs.10,000/- for loss of amenities and enjoyment in life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs.30,400/- with interest @ 7.5% from the date of petition till realization. Respondents 3 and 6 being the insurers of the vehicles shall deposit the amount 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 as above. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn