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 19TH OCTOBER 2010 / 27TH ASWINA 1932 MACA.No. 792 of 2008() ---------------------- OPMV.795/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- IBRAHIMKUTTY, S/O.MOIDUNNI, VAIKATH VALAPPIL HOUSE, PALACHODE, KOKKUR P.O., PONANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): RESPONDENTS --------------- 1. KHALID.M.Y., S/O.YAHU, MAKKIYATE VALAPPIL HOUSE, MANNAREPARAMBIL, P.O.CHALISSERY, PALAKKAD DISTRICT, (OWNER AND DRIVER). ( DELETED) 2. UNITED INDIA INSURANCE COMPANY LIMITED, THRISSUR, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI-11. THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER IN I.A.NO.882/2010 DATED 10/6/10 ADV. SRI.N.S.MOHAMMED USMAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/10/2010 ALONG WITH MACA NO. 184 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos. 184 & 792 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of October, 2010 JUDGMENT Barkath Ali, J. Both these appeals are directed against the judgment and award of Motor Accidents Claims Tribunal, Tirur dated September 11, 2007 in O.P.(MV)No.795/2005 by which the Tribunal awarded a compensation of Rs. 12,62,000/- to the claimant for the loss caused to him on account of the injuries sustained by him in a motor accident. M.A.C.A.No.792/2008 is filed by the claimant in the O.P. claiming enhancement of the compensation amount awarded, while M.A.C.A.No.184/2008 is filed by the second respondent/Insurance Company in the O.P. contending that the compensation amount awarded is excessive. 2. The claimant sustained the following injuries in a motor accident that occurred on July 9, 2005, while he was travelling in a Scorpio car bearing Reg.No.KL-9N/6605 from Kakkur to Thiruvananthapuram and when he reached near Kallampally Junction at about 3 a.m., as a result of the negligence of the driver of the car, it hit against the wall on the side of the road : MACA.No.792/2008 2 Traumatic fracture dislocation of cervical spine at C5 - C6 level with cord compression and contusion. There was prevertebral haematoma from C5-C7 with epidural haematoma from C3- C6 level. 3. Alleging negligence against the first respondent, owner- cum-driver of the offending car, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 25,00,000/-. 4. First respondent, the owner-cum-driver of the offending car remained absent before the Tribunal. The second respondent, the insurer of the offending car filed a written statement admitting the policy. 5. PW1 was examined and Exts.A1 to A23 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending car by first respondent and awarded a compensation of Rs.12,62,000/- with interest @ 9% per annum for an amount of Rs. 5,47,000/- from the date of petition till realisation and a cost of Rs. 13,000/-. No interest was awarded for Rs. 7,15,000/- as the MACA.No.792/2008 3 same was awarded for future treatment expenses and future loss of income. The claimant and the Insurance Company have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellants and the counsel for the respondents. 7. 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 question which arises for consideration in both these appeals is whether the compensation awarded by the Tribunal is excessive; if not, whether the claimant is entitled to any enhanced compensation. 8. Counsel for the claimant sought enhancement of the compensation for the disability caused and on other heads. Counsel for the Insurance Company on the other hand would say that compensation awarded by the Tribunal is excessive. 9. The break up of the compensation awarded is as under : Transport to hospital - Rs. 10,000/- Damage to clothing - Rs. 500/- MACA.No.792/2008 4 Expenses of bystander - Rs. 2,700/- Medical bills - Rs.1,31,000/- Extra nourishment - Rs. 2,700/- Loss of earnings - Rs.4,20,000/- Pain and suffering - Rs.2,00,000/- Loss of amenities - Rs.2,00,000/- Charges of attendant - Rs.2,70,000/- Future treatment - Rs. 25,000/- 10. The Tribunal took the monthly income of the claimant as Rs. 10,000/- and took the multiplier as 7 and assessed the loss of future earning due to the disability caused as Rs.8,40,000/-. As the same was paid in lump, the Tribunal reduced it to half and awarded Rs. 4,20,000/- as compensation for future loss of earnings due to the disability caused. 11. Due to the injury sustained on the spinal cord , the claimant has now become nearly paraplegic i.e. paralysis below the neck and lost the power of moving of both hands and legs as evidenced by Ext.A23, the certificate issued by the Medical Board. Therefore as observed by the Tribunal, loss of earning capacity is nearly 100% . He was employed as a Cashier in a company in U.A.E. earning Rs. 2,500 dirhams . Ext.A19 is the certificate to that effect. Therefore, the Tribunal is perfectly justified in taking his monthly income as MACA.No.792/2008 5 Rs. 10,000/- and assessing his loss of future earnings due to the disability caused as Rs.8,40,000/-. But we are of the view that the Tribunal is not justified in reducing it to half the amount. As the claimant is nearly paraplegic and is confined to wheel chair and taking into consideration the fact that he was aged only 43 at the time of the accident, we feel that he is entitled to the entire compensation amount assessed by the Tribunal for future loss of earnings. Therefore, for future loss of earnings due to the disability caused, the claimant is entitled to Rs. 8,40,000/-. As regards the compensation awarded under other heads, we find the same to the reasonable and therefore are not disturbing the same. 12. As we have found that the claimant is entitled to an additional compensation of Rs. 4,20,000/-, it follows that the compensation awarded by the Tribunal is not excessive and the appeal filed by the Insurance Company has only to be dismissed. 13. In the result, the appellant/claimant is entitled to an additional compensation of Rs. 4,20,000/- with interest @ 9% per annum from the date of petition till realisation. The Insurance MACA.No.792/2008 6 Company shall deposit the amount before the Tribunal within two months from the date of receipt of copy of this judgment. M.A.C.A.No.792/2008 is disposed of as found above. M.A.C.A.No.184/2008 is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.792/2008 7