IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 MACA.No. 13 of 2005() --------------------- OPMV.25/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/CLAIMANT ----------------------- ALIYAR, S/O.MOHAMMED, REPRESENTED BY HIS WIFE, PATHUMMA, AGED 47 AS HIS NEXT FRIEND, MATTATHUKUNNEL HOUSE, KALIYAR KARA, KODIKULAM VILLAGE. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENTS/RESPONDENTS --------------- 1. ALIYAR, S/O.KHADAR, KUZHIPPILLIL HOUSE, AMBALAPPADY BHAGAM, VANNAPPURAM KARA, VANNAPPURAM VILLAGE.( REMOVED) 2. K.K.YOOSEPH, S/O.KASSIM, KANAPARAMBIL HOUSE, VANNAPPURAM KARA, VANNAPPURAM VILLAGE. 3. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., THODUPUZHA. THE NAME OF FIRST RESPONDENT IS REMOVED FROM PARTY ARRAY VIDE ORDER DATED 18-1-2007 IN I.A.NO.101/2007. ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.13 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.25/1999 on the file of Motor Accidents Claims Tribunal, Thodupuzha. In this appeal he challenges the judgment and award of the Tribunal dated December 17, 2003 awarding a compensation of Rs.86,570/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on June 6, 1997 at about 2 p.m. : 1. Contused abrasion below the right mandible in front of the neck and the right mammary region. 2. Lacerated injury over the left parietal eminence. 3. He had bifrontal cerebral contusion minimal frontal subdural haematoma. 2. The accident happened while the claimant was walking along Vannappuram- Thodupuzha road. When he reached at Kaliyar, he was knocked down by a lorry bearing Reg.No.KRF 9065 driven by the first respondent. Alleging negligence against the first respondent, MACA.No.13/2005 2 the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 3,50,000/-. 3. Respondent No.1, the driver of the offending lorry remained absent before the Tribunal. Respondent No.2, the owner of the offending lorry though entered appearance did not file any written statement before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but denied the liability. 4. Pws 1 to 3 were examined and Exts.A1 to A8 and Ext.X1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by first respondent and awarded a compensation of Rs. 86,570/- with interest @ 9% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.13/2005 3 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 first 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 Tribunal awarded a total compensation of Rs.86,750/-. The break up of the compensation amount awarded is as under: Transportation - Rs. 800/- Extra nourishment - Rs. 1500/- Damage to clothes - Rs. 250/- Bystander expenses - Rs. 1,500/- Medical bills - Rs. 9,220/- Pain and suffering - Rs.15,000/- Loss of amenities - Rs. 2,500/- Loss of income - Rs. 9,000/- Disability - Rs. 46,800/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/- and took the percentage of disability as 20% and adopted a MACA.No.13/2005 4 multiplier of 13 and awarded Rs. 46,800/- for the disability caused. The claimant was a coolie aged 40. That being so, we feel that his monthly income can be reasonably fixed at Rs.2,500/-. As regards the disability caused to the claimant, PW3 doctor has certified in Ext.A7 that claimant has significant cognitive dysfunction caused by organic brain pathology. As directed by this court, the claimant appeared before the Medical Board attached to Govt.Medical College, Kottayam. The Board has certified a permanent disability of 15%. He has now bilateral anosmia, dizziness, occasional headache, occasional violent behaviour, occasional incontinence and risk of post traumatic epilepsy. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.58,500/- ( 2500 x 12 x 13 x 15%). Thus on this count, the claimant is entitled to an additional compensation of Rs.11,700/-. 10. The Tribunal awarded Rs.2,500/- 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 Rs. 10,000/- would be reasonable on this count. MACA.No.13/2005 5 11. The Tribunal awarded Rs. 9,000/- towards loss of income for 6 months @ Rs. 1,500/- per month. As we have fixed the monthly income of the claimant as Rs.2,500/-, he is entitled to a compensation of Rs. 15,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 6,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 25,200/-. He is entitled to interest @ 9% per annum from the date of petition till realisation 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.13/2005 6 MACA.No.13/2005 7