IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 MACA.No. 138 of 2010() ---------------------------------- OPMV.733/2003 of II ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/PETITIONER ------------------------------------- SURESHKUMAR P., S/O.PADMANABHAN SANTHOSH BHAVAN, KALLUVATHUKKAL P.O., KOLLAM. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) RESPONDENTS/RESPONDENTS ----------------------------------------------- 1. SUSAN THOMAS, D/O. THOMAS P.S., VILA VEEDU, KAKKOTTU MOOLA, MAYYANADU, KOLLAM. 2. THE BRANCH MANAGER, ORIENTAL INSURANCE CO.LTD., CHINNAKKADA, KOLLAM. R2 BY ADV. SRI.RAJESH THOMAS. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 138 OF 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 13th day of December, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.733 of 2003 on the file of the II Addl. Motor Accidents Claims Tribunal, Kollam. In this appeal he challenges the judgment and award of the Tribunal dated December 30, 2008 awarding a compensation of Rs.53,890/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The claimant sustained the following injuries in the accident :- “1) Complaint of pain right shoulder. 2) Movement painful and pain right hip. 3) Fracture coracoids right. 4) Grade III AC disruption right side. 5) Medial collateral injury right side. 3. The accident happened on November 29, 2002 at MACA 138/2010 2 about 6 p.m. while the claimant was standing on the western ride of Kollam – Thiruvananthapuram NH 47 at Kalluvathukkal, he was knocked down by a car bearing registration No.KLE 5914. Alleging negligence against the driver of the offending car, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.1,50,000/- 4. The respondent Insurance Company entered appearance and filed a written statement admitting the policy. The other respondents remained absent and were set ex parte by the Tribunal. 5. The claimant was examined as PW1 and Exts.A1 to A 19 were marked on his side. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the driver of the offending car and awarded a compensation of Rs.53,890/- with interest @ 7% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation MACA 138/2010 3 awarded by the Tribunal. 6. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the driver of the offending car 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. 8. The Tribunal assessed a total compensation of Rs.54,090/- (mistakenly shown as Rs.53,890/- in the award). Break up of the compensation awarded is as under:- Loss of earning : Rs. 7,500 Transport to hospital : Rs. 1,270 Damage to clothing : Rs. 500 Extra nourishment : Rs. 2,000 Bystander expenses : Rs. 300 Medical and incidental expenses : Rs. 1,920 Pain and suffering : Rs.10,000 Permanent disability : Rs.30,600 ------------------ Total : Rs.54,090 ======= 9. The learned counsel for the appellant/claimant MACA 138/2010 4 sought enhancement of compensation for the disability caused and for pain and suffering endured by the claimant. The learned counsel also pointed out that no compensation was awarded towards loss of amenities and enjoyment in life. 10. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 10%, adopted multiplier of 17 and awarded Rs.30,600/- towards disability caused. The claimant was a Mason earning Rs.2,00/- per month, according to him. Therefore, we feel that his monthly income can reasonably be fixed at Rs.2,000/- per month. Ext.A19 disability certificate shows that the claimant has permanent disability of 16%. Taking into consideration the nature of the disability caused to him, we feel that percentage of disability can be fixed at 12%. Multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus, calculated for the disability caused, the claimant is entitled to a compensation of Rs.48,960/-. Thus, on this count the claimant is entitled to an additional MACA 138/2010 5 compensation of Rs.18,360/-. 11. The Tribunal awarded Rs.10,000/- for pain and suffering endured by the claimant. Taking into consideration the nature of the injuries sustained by him, we feel that a compensation of Rs.15,000/- would be reasonable on this count. 12. No compensation was awarded for loss of amenities and enjoyment in life. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.15,000/- would be reasonable on this count. 13. The Tribunal assessed the total compensation of Rs.54,090/-, but mistakenly awarded Rs.53,890/-. The total compensation awarded by the Tribunal stands corrected as Rs.54,090/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 14. In the result, the claimant is found entitled to an additional compensation of Rs.38,360/-. He is entitled to MACA 138/2010 6 interest @ 7% per annum from the date of petition till realization. The respondent Insurance Company 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