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 JUNE 2010 / 21ST JYAISTHA 1932 MACA.No. 328 of 2004() ---------------------- OPMV.1327/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/PETITIONER: ----------------------------------- ASOKAN, S/O. MADHAVAN, ASWATHY NIVAS, AVALOOKUNNU P.O., ARYAD PANCHAYATH, WARD VIII, ALAPPUZHA. BY ADVS. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. RESPONDENT(S): --------------------------- 1. ABDUL GAFOOR, S/O. M. ALIYAR THANUPARAMBIL VEEDU, SANATHANAM WARD, ALAPPUZHA. 2. P. GOPALAKRISHNAN, S/O. PARAMESWARAN, LEKSHMI VILASOM, GOMATHY THOPPU, THONDANKULANGARA WARD, ALAPPUZHA. 3. THE UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, ALAPPUZHA. R3 BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 328 OF 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 11th 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.1327 of 1996 of Motor Accidents Claims Tribunal, Alappuzha challenges the judgment and award of the Tribunal dated July 10, 2003 awarding a compensation of Rs. 30,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 37 at the time of the accident and as an Advocate's Clerk, he used to earn Rs.4,500/- per month. On April 9, 1996 at 6.05 p.m. the claimant was riding a scooter bearing registration No. KL4/C 8068 along Alappuzha - Ernakulam National Highway. When he reached near Power House Bridge of Alappuzha, a lorry bearing registration No.KL.7/J 6840 came from the opposite MACA 328/04 2 side and dashed against the scooter. The claimant sustained serious injuries. According to him, the accident occurred due to the negligence on the part of second respondent, driver of the lorry. 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.1,71,000/-. 3. Second respondent, driver of the offending lorry, remained absent and was set ex parte by the Tribunal. Respondents 1 and 3, owner and insurer of the offending lorry, though entered appearance did not file any written statement before the Tribunal. 4. Claimant was examined as PW1 and Exts.A1 to A12 were marked on the side of the claimant before the Tribunal. No evidence was adduced by 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 the second respondent and awarded a compensation of MACA 328/04 3 Rs.30,000/- with interest at the rate of 6% per annum from the date of petition till realization. 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 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 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 Ext.A4, copy of the wound certificate, issued from the Medical College Hospital, Alappuzha:- 1) Closed Galezzi fracature(R) radius. 2) Contusion (R) leg with puncture wound. X-ray shows that he has suffered fracture of radius distal shaft. Ext.A7 is the discharge card, which shows that the claimant MACA 328/04 4 was treated in the hospital for 8 days. Ext.A8 is the discharge card, which shows that the petitioner had undergone surgery for removal of the implant. Ext.A10 is the O.P. ticket. Ext.A12 certificate of disability shows that the claimant has disability at 12% due to the fracture sustained to the right hand. 8. The Tribunal awarded a total compensation of Rs.30,000/-. Break up of the compensation awarded is as under :- Loss of earning : Rs. 6,000/- Treatment, medicine, : Rs. 4,000/- transportation etc. Pain and sufferings : Rs. 8,000/- Partial disability and : Rs.12,000/- loss of amenities. -------------------- Total : Rs.30,000/- ======== 9. The learned counsel for the claimant sought enhancement of compensation towards the disability caused and pain and suffering endured. 10. The Tribunal took the monthly income of the claimant as Rs.2,000/-, adopted multiplier of 16, took the percentage of disability as 7 and awarded Rs.12,000/- for the disability MACA 328/04 5 caused. The claimant being an Advocate Clerk, we feel that his monthly income can reasonably be estimated at Rs.2,500/-, which works out Rs.30,000/- per annum. Taking into account the nature of disability sustained by him, we feel that per cent age of disability can be assessed at 7%. Proper multiplier to be adopted in this case is 16. Therefore, for the disability caused and for the consequential loss of earning power the claimant is entitled to a compensation of Rs.33,600/- (Rs.30,000/- x 16 x 7/100). Thus, on this count, the claimant is entitled to an additional compensation of Rs.21,600/-. 11. The Tribunal awarded Rs.6,000/- towards the loss of earnings for three month at the rate of Rs.2,000/- per month. As we have fixed the monthly income of the claimant as Rs.2,500/-, he is entitled to a compensation of Rs.9,000/- on this count. 12. For pain and suffering Rs.8,000/- was awarded by the Tribunal, which appears to be very low. Having regard to the nature of the injuries sustained, we feel that a compensation of Rs.15,000/- would be reasonable on this count. Thus, the MACA 328/04 6 claimant is entitled to an additional compensation of Rs.7,000/- on this count. As regards the compensation granted under other heads, we find the same to be reasonable and therefore, are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs.31,600/-. He is entitled to interest @ 7.5% 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.