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 8TH APRIL 2010 / 18TH CHAITHRA 1932 MACA.No. 1272 of 2008() ----------------------- OPMV.321/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/PETITIONER:- ------------------------------------ SIVANANDAN,S/O KRISHNAN,WARD NO.III, MARARIKULAM NORTH PANCHAYATH, SL PURAM, CHERTHALA. BY ADV. SRI.C.V.MANUVILSAN SRI.T.K.SUJITH RESPONDENT(S): RESPONDENTS --------------- 1. THE ORIENTAL INSURANCE COMPANY LTD., MULLACKAL, ALAPPUZHA. 2. FRANCIS JOSEPH, MACHUNGAL SADANAM, KALARAKODE, PUNNAPRA, ALAPPUZHA. 3. N.PRAKASH, S/O NARAYANAN, SREE SADANAM, KALARAKODE, PUNNAPRA, ALAPPUZHA. ADV. SRI.VPK.PANICKER FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/04/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1272 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.321/2002 of Motor Accidents Claims Tribunal, Alappuzha challenges the judgment and award of the Tribunal dated March 9, 2006 awarding a compensation of Rs. 50,350/- 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 an Auto rickshaw driver aged 32 and used to earn Rs. 4,000/- per month at the time of the accident, according to him. On November 8, 1999, while the claimant was travelling in the auto rickshaw bearing Reg.No.KL-4-B/1767 along Alappuzha- Ernakulam National Highway 47, a tempo van bearing Reg. No. KL-4-7408 driven by the second respondent came at a high speed and dashed against the auto rickshaw in the which the claimant was MACA.No.1272/2008 2 travelling. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending tempo van by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending tempo van are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 3,90,000/-. 3. Respondents 1 and 2, the owner and driver of the offending tempo van remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending tempo van filed a written statement admitting the policy and further contending that there was also negligence on the part of the driver of the auto rickshaw involved in the accident. 4. Exts.A1 to A12 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, copy of the policy was marked as Ext.B1. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending tempo van by second MACA.No.1272/2008 3 respondent and awarded a compensation of Rs. 53,350/-. 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. 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.A7, the wound certificate issued from Medical College Hospital, Alappuzha. Compression fracture of L1 vertibra, compression fracture of cervical spine, USS-Gas distended bowed loops, abrasion on the forehead, abrasion on the right forearm, dorsum of left hand, abrasion on the lateral aspect of the right thigh, knee, medial and lateral aspect of tibia and lacerated wound 3 x 5 x .5 cms. on the parietal region. MACA.No.1272/2008 4 8. Ext.A3 is the copy of the discharge card issued from the hospital from which it is seen that he was admitted on November 8, 1999 and was discharged on November 18, 1999. Ext.A4 series are O.P. tickets issued from the hospital. Ext.A5 series are the bills. Ext.A6 is the Ultra sound scan report. Ext.A11 is the certificate of disability issued by the Doctor stating that he has a permanent disability of 15%. 9. The Tribunal awarded a total compensation of Rs. 50,350/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 6,000/- for 4 months @ Rs. 1500/- Treatment charges -Rs. 1,000/- Bystanders expenses -Rs. 1,000/- Extra nourishment -Rs. 500/- Damage to clothing -Rs. 250/- Pain and suffering -Rs. 8,000/- Loss of amenities -Rs. 2,000/- Disability -Rs. 30,600/- ----------------- Total -Rs. 50,350/- ========= 10. Counsel for the claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly MACA.No.1272/2008 5 income of the claimant as Rs. 1,500/- and adopted a multiplier of 17 and took the percentage of disability as 10% and awarded Rs. 30,600/- for the disability caused. The case of the claimant is that he is an Auto rickshaw driver and used to earn Rs. 4,000/- per month. Though no document was produced to substantiate the above contention, even as a coolie worker, he would have earned Rs. 100/- per day. Therefore, we feel that the monthly income of the claimant can be fixed at Rs. 2,500/- . As regards the multiplier adopted by the Tribunal as 17, it is not seriously disputed. But as regards the percentage of disability assessed, the doctor has assessed the percentage of disability as 15% as seen from Ext.A11, the certificate. The claimant being an Auto rickshaw driver, according to him, the percentage of disability, as stated in Ext.A11, in our view, can be accepted. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 76,500/- ( 2500 x 12 x 17 x 15%). Thus on this count, the claimant is entitled to an additional compensation of Rs. 45,900/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. MACA.No.1272/2008 6 11. Thus, the claimant is found entitled to an additional compensation of Rs. 45,900/-. There is another aspect in this case. The Tribunal awarded interest @ 6% per annum which appears to be very low. Claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and for the enhanced compensation. 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.1272/2008 7