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 27TH MAY 2010 / 6TH JYAISHTA 1932 MACA.No. 1884 of 2005() ----------------------- OPMV.2861/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/CLAIMANT -------------------------------- P.I.PAULACHAN, AGED 34 YEARS, S/O.ITTIACHAN, PUTHUSSERY HOUSE, AYIROOR P.O., VIA KURUMASSERY. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): RESPONDENTS -------------------------- 1. T.M.MANOJ KUMAR, S/O.T.A.MOHAMMED KUNJU, THATTAM VEEDU, 36/1079, COCHIN - 17. 2. P.SAHABUDHEEN, S/O.MAMUKUTTY, VADAKKEVALAPPIL HOUSE, PARIYARAM P.O., THRISSUR DISTRICT. 3. UNITED INDIA INSURANCE CO.LTD., BY ITS MANAGER, M.T.P.C.OFFICE, VETTUKATTIL BUILDING, M.G.ROAD, COCHIN - 16. ADV. SRI.A.A.MOHAMMED NAZIR FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1884 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.2861/1996 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated April 30, 2003 awarding a compensation of Rs. 2,03,000/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was aged 25 and was employed as a waiter in Hotel Taj Malabar at Willington Island earning Rs.2,328/- per month. On February 8, 1995 at about 6.15 p.m., the claimant was riding his motor cycle bearing Reg.No.KL7/J 5519 along Palarivattom-Ernakulam Main Road. When he reached near Deshabhimani Road Junction at Kaloor, a car bearing Reg.No.KRU 8777 driven by the second respondent came at a high speed from behind and dashed against the motor cycle of the MACA.No.1884/2005 2 claimant. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending car by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending car are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 5 lakhs. 3. First respondent, the owner of the offending car filed a written statement admitting the accident, but denying the liability and contending that the accident occurred due to the negligence of the claimant. Second respondent, the driver of the offending car remained absent. The third respondent, the insurer of the offending car filed a written statement admitting the policy. 4. Claimant was examined as PW1 and Exts.A1 to A13 were marked on his side. On the side of the respondent, Exts.B1 and B2 were marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending car by second respondent and awarded a compensation of Rs.2,03,000/-. The claimant has now come up in appeal challenging MACA.No.1884/2005 3 the quantum of compensation awarded by the Tribunal. 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 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 as revealed from Ext.A4, the copy of the wound certificate issued from Ernakulam Medical Centre, Palarivattom. Ext.A6 is the treatment certificate issued from the hospital. Cerebral concussion, Abrasions on ( R) thigh, ( L) ankle, (L) foot, Echynosis ( R) side ( L.Black eye). Compound fracture both bones ( R) leg. Small extradural haematoma ( L ) temporal region, with cerebral oedema. Fracture ( L) temporal bone. Wound cebridement, external fixation done. Bone MACA.No.1884/2005 4 and skin grating done. P.O.P. cast given. 8. The Tribunal awarded a total compensation of Rs.2,03,000/-. The break up of the compensation awarded is as under : Transport to hospital - Rs. 500/- Damage to clothing - Rs. 500/- Extra nourishment - Rs. 3,000/- Attendant expenses - Rs. 5,000/- Loss of earnings - Rs.10,000/- Pain and suffering - Rs.15,000/- Loss of amenities - Rs.10,000/- Disability - Rs.94,982.50 Physical disability - Rs. 5,000/- Treatment expenses - Rs.59,000/- 9. Counsel for the claimant sought enhancement of compensation awarded for the disability caused, pain and suffering and loss of amenities and enjoyment of life. 10. The Tribunal took the monthly income of the claimant as Rs. 2,328/- as revealed from Ext.A10, his salary certificate and assessed his disability as 20% as shown in Ext.C1, the certificate of disability issued by the Medical Board and adopted a multiplier of 17 MACA.No.1884/2005 5 as he was aged only 25 at the time of the accident and awarded Rs. 94,982.50 for the disability caused. 11. Counsel for the claimant argued that taking into account the future prospects of the claimant, the monthly income should be taken as atleast Rs. 3,000/- per month. The claimant was a waiter in a hotel. PW1 did not testify as to what his prospect is. That apart, he is still employed. Therefore, the Tribunal is perfectly justified in assessing his monthly income as Rs. 2328/- as shown in Ext.A10. Further in Ext.C1, the certificate of disability, shows that claimant has now 1 inch shortening of right leg. There is depressed mobility of right ankle and knee joints and he is unable to squat, climb stairs, weight bear on right leg and walk on uneven grounds. Taking into consideration all these aspects, we feel that the compensation awarded by the Tribunal for the disability caused is reasonable. 12. The Tribunal awarded Rs. 15,000/- for pain and suffering which appears to be very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs.20,000/- would be reasonable on this count. Thus on this count, the claimant is entitled MACA.No.1884/2005 6 to an additional compensation of Rs. 5,000/- . 13. For the loss of amenities and enjoyment of life, Rs. 10,000/- was awarded by the Tribunal. Having regard to the nature of the injury sustained, we feel that a compensation of Rs. 20,000/- would be adequate on this count. Thus on this count, the claimant is entitled to an additional compensation of Rs. 10,000/-. 14. The Tribunal awarded compensation for loss of earnings for 10 months only @ Rs. 1000/- per month. But as the monthly income of the claimant is fixed at Rs. 2,328/-, he is entitled to compensation for loss of earnings at that rate i.e. Rs. 23,280/-. Thus on this count, the claimant is entitled to an additional compensation of Rs. 13,280/-. 15. There is another aspect in this case. The Tribunal awarded a compensation of Rs. 5,000/- for the physical disability caused. As compensation is awarded for the disability caused, we feel that claimant is not entitled for further compensation of Rs. 5,000/- for the physical disability. 16. There is a delay of 480 days in filing the appeal. Therefore MACA.No.1884/2005 7 for that period, the claimant will not be entitled to claim interest. 17. In the result, the claimant is entitled to an additional compensation of Rs. 23,280/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant will not be entitled to interest for 480 days. 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. 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