IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 MACA.No. 209 of 2004() ---------------------------------- OPMV.572/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/CLAIMANT: ----------------------------------- ANIL JOHNSON, S/O. ANTONY, ROHINI UTHRAM, REETHA HOMES, JOHNSON'S LANE, KATTAKADA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/RESPONDENTS IN THE O.P: ----------------------------------------------------------------- 1. MATHAI NAINAN, PERUMGUTTUMPALLIL THOPPIL, BHADHANOOR, CHENGANNUR. 2. VIJAYAN ACHARI, BINDHU NIVAS, PONNARAMTHOTTAM, MAVELIKKARA. 3. THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE NO.II, GANDHARI AMMANKOVIL ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.BABU KARUKAPADATH, SRI.JYOTHISH.J.KALLINGAL. R3 BY ADV. SRI.VPK.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. 0.A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 209 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 8th day of June, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.572 of 2001 of the Motor Accidents Claims Tribunal, Neyyattinkara challenges the judgment and award of the Tribunal dated September 22, 2003 awarding a compensation of Rs.68,140/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 22 at the time of the accident and was studying in M.Sc. Course in Bishop Moore College, Mavelikkara. On June 15, 2000 at 11 a.m. the claimant was pillion riding on a motor cycle bearing registration No.KL-04-B-258 along the Kallumala – Puthioyakavu public road. When they reached near Puthiyakavu Over Bridge junction, the second respondent MACA 209/2004 2 who was riding the motor cycle suddenly swerved the vehicle, as a result of which, the claimant was thrown on the road and sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent riding of the offending motor cycle by the second respondent. The first respondent, as the owner, the second respondent, as the rider and third respondent, as the insurer of the offending motor cycle are jointly and severely liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.4 lakhs. 3. Respondents 1 and 2, the owner and rider of the offending motor cycle, remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending motor cycle, filed a written statement, admitting the policy. 4. Exts. A1 to A10 were marked on the side of the claimant. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.68,140/- with interest at the rate of 9% MACA 209/2004 3 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 and learned counsel for respondents 1 and 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, rider of the offending motor cycle 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, as revealed from Ext.A6 discharge summary, Extd.A7 treatment certificate and Ext.A9 medical certificate issued from Sree Uthradom Thirunal Hospital, Thiruvananthapuram:- 1) Compound depressed fracture frontal midline with brain oedema. MACA 209/2004 4 2) Laceration and abrasion over the hands and legs. 3) Lost the nail of the ® great toe. He was admitted in the hospital on June 15, 2000 and discharged on June 23, 2000. Right frontal craniotomy and removal of the compressed depressed fracture fragments were done. Ext.A8 is the certificate of disability issued by the Asst. Professor of Surgery, Medical College Hospital, Thiruvananthapuram. Now he has the following disabilities:- i) Ugly scar centre of forehead with depression and bony defect 3 x 4 cm & brain; pulsation is visible through the defect. 2) Ataxia and vertigo affecting his routine activities. 3) Recurrent attacks of frontal headache suggestive of post traumatic in origin. 4) Inability to concentrate and poor memory power, as complained by him. The doctor has assessed his permanent disability as 13%. MACA 209/2004 5 8. The Tribunal awarded a total compensation of Rs.68,140/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs.10,000/- Transport to hospital : Rs. 2,000/- Damage to clothing : Rs. 500/- Medical expenses : Rs.15,000/- Disability caused : Rs.32,640/- Loss of amenities : Rs. 8,000/- and enjoyment of life. ------------------ Total : Rs.68,140/- ======= 9. The learned counsel for the appellant has mainly sought enhancement of compensation for disability caused and for pain and suffering endured. The Tribunal took the monthly income of claimant as Rs.2,000/-, took the percentage of disability as 8%, adopted a multiplier of 17 and awarded a compensation of Rs.32,600/- for the disability caused. Taking into consideration the fact that the claimant was studying in M.Sc., we feel that his monthly income can reasonably be estimated at Rs.2,250/-. Percentage of disability and the multiplier adopted by the MACA 209/2004 6 Tribunal are not seriously challenged. Thus, calculated for the disability caused and for the consequential loss of earning power, the claimant is entitled to a compensation of Rs.36,720/- (Rs.2,250/- x 12 x 17 x 8/100). Thus on this count, the claimant is entitled to an additional compensation of Rs.4,080/-. 10. For pain and suffering endured, the Tribunal awarded a compensation of Rs.10,000/, which appears to be very low. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.15,000/- would be reasonable on this count. Thus, the claimant is entitled to additional compensation of Rs.5,000/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. In the result, the claimant is entitled to an additional compensation of Rs.9,080/-. He is entitled to interest @ 9% from the date of petition till realization and proportionate costs. The third respondent, being the insurer of the MACA 209/2004 7 offending lorry, 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 to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn