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 5TH OCTOBER 2010 / 13TH ASWINA 1932 MACA.No. 709 of 2010() ------------------------------- OPMV.1775/2005 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER ------------------------------------------ KHADER, S/O. KUTTIALIKUTTY, AGED 45 YEARS, PAZHACHINILATH HOUSE, P.O.KINALOOR, VIA BALUSSERY KOZHIKODE DISTRICT. BY ADV. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN RESPONDENT(S): --------------- 1. A.S.AFZAL, S/O. ABOOBCKER AGE NOT KNOWN, RESIDING AT SALEENA HOUSE, UNIIKULAM P.O., POONOOR, KOZHIKODE DEISTRICT. 2. NATIONL INSURANCE CO. LTD., DIVISIONAL OFFICE, NOOR COMPLEX, P.B.NO.811, NEAR ARAYADATHUPALAM, MAVOOR ROAD, KOZHIKODE. ADV. SRI.LAL GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------------- M.A.C.A No. 709 OF 2010 ------------------------------------------- DATED THIS THE 5TH DAY OF OCTOBER, 2010 JUDGMENT ---------------- Barkath Ali, J. The appellant is the claimant in OP(MV) No. 1775/2005 on the file of Motor Accidents Claims Tribunal, Kozhikode. He sustained the following injuries in a motor accident that occurred on June 2, 2005 at about 3.45 p.m. in front of Korangad High School near Thamarassery. “Fracture shaft of femur, ribs right 2,3,4,6,8 and 10 lacerated wound right elbow and pneumothorax right.” 2. The accident happened while he was pillion riding on a motor cycle bearing No. KL.11-N-4365 from Thamarassery to Poonoor and when he reached in front of Korangad High School, a bus bearing registration No. KL.18/A-5823 came at high speed and knocked him down. Alleging negligence against the driver of the bus, he filed O.P before the Motor Accidents Claims Tribunal, Kozhikode claiming a compensation of ` 2 lakhs, against respondents 1 and 2, the owner and Insurer of the offending bus. 3. First respondent,owner remained absent. The 2nd respondent filed a written statement admitting the policy, but attributed M.A.C.A No. 709 OF 2010 2 negligence against the rider of the motor cycle. 4. PW1 was examined and Exts. A1 to A8 were marked on the side of the claimant. The certificate of disability was marked as Ext.C1. No evidence was adduced by the contesting 2nd respondent . On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the 1st respondent and awarded a compensation of ` 69,450/- with interest at the rate of 7% per annum and proportionate cost. Claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant 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, the driver of the offending bus 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 ` 69,450/-. The break up of the compensation awarded is as under: M.A.C.A No. 709 OF 2010 3 Loss of earnings : ` 2,500 Transport to Hospital : ` 500 Damage to clothing : ` 250 Treatment expenses : ` 35,000 Permanent Disability : ` 16,200 Pain and suffering : ` 15,000 --------------- Total : ` 69,450/- ======= 8. The counsel for the claimant sought enhancement of the compensation for the disability caused, pain and suffering endured by the claimant and on other heads. 9. Tribunal took the monthly of the claimant as ` 2000/- and took the percentage of the disability as 4.5% as certified by the Medical Board in Ext.C1 and adopted a multiplier of 16 as the claimant was aged 40 at the time of accident and awarded a compensation of ` 16,200/- for the disability caused. Claimant was a Jeep driver and used to earn ` 4,000/- per month as testified by him before the Tribunal as PW1. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at ` 3000/-. The percentage of disability as certified by the Medical Board in Ext. C1 as 4.5% and the multiplier of 16 adopted by the Tribunal are not seriously challenged. Therefore, for the disability caused M.A.C.A No. 709 OF 2010 4 the claimant is entitled a compensation of ` 25,920/- (`3000x12x16x4.5%). Thus on this count, the claimant is entitled to an additional compensation of ` 9720/-. As regards, the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 10. In the result, the claimant is found entitled to an additional compensation of ` 9720/-. He is entitled to a interest at the rate of 7% per annum from the date of petition till realization and proportionate cost. The 2nd 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. Sd/- A.K.BASHEER Judge Sd/- P.Q.BARKATH ALI Judge PKK