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 8TH JUNE 2010 / 18TH JYAISTHA 1932 MACA.No. 104 of 2004() ------------------------------- OPMV.587/1995 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER IN OP (M.V): ------------------------------------------------------------------------------ ALI, S/O. MOHAMMED, PANIKKAVEETTIL HOUSE, P.O. NATTIKA BEACH, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS 1 TO 3 IN OP (M.V): ------------------------------------------------------------------------- 1. P. MOHAMED, S/O. KUNHUMUTTY, PATHAKATH HOUSE, PULIKKAL P.O. MALAPPURAM DISTRICT. 2. ABDUL HAMEED, S/O. ABDULKADER, KOZHIMA VALAPPIL HOUSE, PONNANI SOUTH P.O., MALAPPURAM DISTRICT. 3. THE MANAGER, ORIENTAL INSURANCE CO.LTD., MATTANCHERRY BRANCH, ERNAKULAM. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI JJ. -------------------------------------------------- M.A.C.A NO. 104 OF 2004 ---------------------------------- DATED THIS THE 8 TH DAY OF JUNE, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV) No. 587/95 on the file of Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated May 17, 2003 awarding a compensation of Rs. 68,000/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 23 and used to earn Rs. 1,500/- per month from fishing. On April 25,1994 at about 2.15 p.m. the claimant was travelling in a car bearing registration No. KER 8568 from Koorikuzhi to Chenthrapinni. When he reached at Chenthrapinni, a tempovan bearing registration No. KE10/B/4398 M.A.C.A NO. 104 OF 2004 2 came at a high speed from the opposite side and dashed against the car in which the claimant was travelling. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the driver of the tempovan. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending tempovan are jointly and severally liable to pay compensation to the claimant. 3. Respondnets 1 and 2 remained absent and were set ex-parte by the Tribunal. The 3rd respondent, the insurer of the offending tempovan filed a written statement admitting the policy but further contended that the accident occurred due to the negligence on the part of the driver of the car involved in the accident. 4. In the light of the contention raised by the 3rd respondent, the owner, driver and insurer of the car in which the claimant was travelling were impleaded as additional respondents M.A.C.A NO. 104 OF 2004 3 4 to 6. The 4th respondent, the driver of the car filed a written statement admitting the accident but contending that the accident occurred due to the negligence on the part of the 2nd respondent, the driver of the offending tempovan. The 5th respondent did not file any written statement. The 6th respondent, the Insurer of the car filed a written statement admitting the policy but contending that the accident occurred due to the negligence on the part of the 2nd respondent, the driver of the offending tempovan. 5. PW1 and PW2 were examined and Exts. A1 to A8 were marked on the side of the claimant. Exts. B1 and B2 were marked on the side of the respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence on the part of the 2nd respondent, the driver of the offending tempovan and awarded a compensation of Rs. 68,000/- against respondents 1 to 3. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. M.A.C.A NO. 104 OF 2004 4 6. Heard the counsel for the appellant/claimant and the counsel for the insurance company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd respondent, the driver of the offending tempovan is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ? 8. The claimant sustained the following injuries as revealed from Ext.A4, the discharge summary issued from West Fort, Hospital, Thrissur, wherein the claimant was treated till 13.5.1994. “Compound Grade II comminuted fracture upper end of radius head ulna right. Radial head dislocation” 9. Ext.A5 is the another discharge summary issued by the same Hospital which shows that the claimant was again admitted as inpatient on 30.10.1994 till 5.11.1994. Ext.A6 is the disability certificate issued by the above hospital which shows that M.A.C.A NO. 104 OF 2004 5 the claimant is suffering from a permanent partial disability of 20%. He has a disability of “radio ulnar synositis with total loss of supination and pronation of the forearm and elbow extension”. 10. The Tribunal awarded a total compensation of Rs. 68,000/-. The break up of the award amount is as under:- Disability caused : Rs. 27,540.00 Pain and sufferings : Rs. 10,000.00 Loss of amenities : Rs. 2,000.00 Loss of earnings for 6 months :Rs. 5,400.00 at the rate of Rs. 900/-. Transportation expenses : Rs. 1,500.00 Medical treatment : Rs. 21,082.00 Bystander expense : Rs. 500.00 ------------- Total: : Rs. 68,022.00 ========= 11. The counsel for the claimant sought enhancement of the compensation for the disability caused and for loss of amenities and enjoyment of life. 12. The Tribunal took the monthly income of the claimant as Rs. 900/- and assessed his disability as 15% and adopted a multiplier of 17 and awarded a compensation of Rs. 27,540/- for M.A.C.A NO. 104 OF 2004 6 the disability caused. Taking into consideration of the fact that the claimant was a fisherman, we feel that the monthly income of the claimant can be reasonably fixed as Rs. 1500/-. The percentage of disability fixed by the Tribunal appears to be reasonable. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Therefore, the claimant is entitled to a compensation of Rs. 45,900 (1500 x 12 x 15% x 17) for the disability caused. Thus on this count, the claimant is entitled to an additional compensation of Rs. 18,360/-. 13. For loss of amenities and enjoyment of life Rs. 2,000/- was awarded by the Tribunal which appears to be very inadequate. Therefore, towards loss of amenities and enjoyment of life, we feel that a compensation of Rs. 5,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable. 13. Thus the claimant is entitled to an additional compensation of Rs.23,360/-. He is entitled to interest at the rate M.A.C.A NO. 104 OF 2004 7 of 9% per annum from the date of petition till realization and proportionate cost. The 3rd respondent, being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of 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) PKK