IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 MACA.No. 233 of 2005() ---------------------- OPMV.1871/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER ----------------------- P.M.ABDULLA, AGED 42 YEARS, S/O.MOHAMMED, PLAVUNGAL HOUSE, CHANDIROOR P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS/RESPONDENTS 1 TO 6 --------------- 1. C.U.NOUSHAD, S/O.UMMER, CHELLIPADATH HOUSE, BRAHAMAPURAM P.O., AMBALAMEDU, ERNAKULAM DISTRICT. 2. SUKU.C.K., S/O.KURUMBAN, PENEPADATH HOUSE, PERINGOLAKARA, KUNNATHUNAD VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT. 3. NATIONAL INSURANCE COMPANY LIMITED, BY ITS REGL.MANAGER, REGL. OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-35. 4. N.P.BABU, S/O.PARAMESWARAN, PADMALAYAM, VETTAKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT. 5. K.K.SABU, S/O.KARUNAKARAN, KERASSERI VEETTIL, KATTOOR MURI DESOM, KATTOOR P.O., MARARIKULAM SOUTH, VILLAGE, ALAPPUZHA DISTRICT. 6. THE NEW INDIA ASSURANCE CO.LTD., BY ITS REGL. MANAGER, REGL.OFFICE, KANDAMKULATHY BUILDINGS, M.G.ROAD, COCHIN-11. ADV. SRI.MATHEWS K.PHILIP FOR R1 SRI.VPK.PANICKER FOR R6 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 SRI PK RAVINDRANATHA MENON AMICUS CURIAE SRI JOSE JOSEPH B/O FOR COUNSEL FOR REV THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.233 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1871/1996 on the file of Motor Accidents Claims Tribunal, Ernakulam. In this appeal he challenges the judgment and award of the Tribunal dated November 28, 2003 awarding a compensation of ` 2,77,500/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on June 17, 1995 at about 8.45 p.m. while the claimant was travelling in the bus bearing Reg.No.KL-4/B- 7009 along Vytilla-Aroor NH byepass road. When he reached near the northern side of Kumbalam bridge, the bus dashed against a lorry bearing Reg.No.KRR/7668 driven by the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of ` 5,00,000/-. 3. Respondents 1 to 3 are the owner, driver and insurer of the MACA.No.233/2005 2 offending lorry. Respondents 4 to 6 are the owner, driver and insurer of the bus involved in the accident. Respondents 1, 2, 4 and 5 remained absent before the Tribunal. Respondents 3 and 6, the insurers of the vehicles filed written statements admitting the policy of the respective vehicle, but attributed negligence to the driver of the other vehicle. 4. This O.P. was jointly tried along with the other O.P. filed by the other injured person and a common award was passed by the Tribunal. PWs 1 to 3 were examined and Exts.A1 to A21 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 found that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent and awarded a compensation of ` 2,77,500/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in 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. MACA.No.233/2005 3 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 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 in the accident : Conscious, oriented pallate traumatic total amputation of ( R) upper limb at the lever of upper 3rd of arm with crushed muscles and Neuro varentar bundles Abrasion over the chest wall over the ( R) parietal. 8. The Tribunal awarded a total compensation of ` 2,77,500/-. The break up of the compensation amount awarded is as under: Transportation - Rs. 1,000/- Damage to clothing - Rs. 500/- Attendant expenses - Rs. 1,000/- Extra nourishment - Rs. 1,000/- Loss of earnings - Rs. 4,500/- Nursing expenses - Rs. 6,000/- Treatment expenses - Rs.22,000/- Taxi, train and accommodation bills - Rs. 3,000/- Materials purchased - Rs. 3,000/- Pain and suffering - Rs.30,000/- MACA.No.233/2005 4 Loss of amenities - Rs.20,000/- Loss of earning power - Rs.1,75,500/- Physical disability - Rs. 10,000/- 9. Counsel for the claimant sought enhancement of compensation for loss of earning power and on other heads. 10. The Tribunal took the monthly income of the claimant as ` 1,500/- and took the percentage of disability as 65% as assessed by the Medical Board in Ext.A15 certificate and adopted a multiplier of 15 as the claimant was aged 34 at the time of the accident and awarded ` 1,75,500/- for loss of earning power. 11. The claimant was employed as Cashier of Premier Exports International at Chandiroor earning Rs.3,250/- per month. Ext.A9 is his salary certificate. PW2, his employer was also examined to prove the same. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at ` 2,500/-. As regards the percentage of disability, his right upper limb was amputated. Therefore, we feel that the 65% disability assessed by the Medical Board is reasonable. The multiplier adopted by the Tribunal as 15 is not seriously challenged. Thus calculated for loss of earning MACA.No.233/2005 5 power, the claimant is entitled to a compensation of ` 2,92,500/- ( 65% x 2500 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of ` 1,17,000/-. 12. The Tribunal awarded ` 20,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of ` 30,000/- would be reasonable on this count. 13. No compensation is seen awarded for the future treatment expenses. The nature of the injury sustained by the claimant shows that he needs future treatment for which we feel that a compensation of Rs.50,000/- would be reasonable. 14. The Tribunal awarded Rs.10,000/- for the physical disability caused which is not permissible as compensation has been awarded for loss of earning power. Therefore, this amount has to be deducted from the compensation awarded to the petitioner. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 15. There is another aspect in this case. The Tribunal awarded MACA.No.233/2005 6 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. 16. In the result, the claimant is found entitled to an additional compensation of ` 1,67,000/-. He 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 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.233/2005 7 MACA.No.233/2005 8