IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 MACA.No. 162 of 2006() ---------------------- OPMV.320/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ------------------------------------ PADMAKUMARI, D/O. KRISHNA PILLAI, BIMBIS HOUSE, PANACHIKAVU KARA, PERUNNAI, CHANGANACHERRY. BY ADV. SRI.K.A.HASHIM RESPONDENT(S): RESPONDENTS --------------------------- 1. BABUKUTTY THOMAS, S/O. GEORGE THOMAS, MELAKKATTU HOUSE, ANIKKATTU VILLAGE, MADAPPALLY. 2. T.V.ANTONY, S/O. OUSEPH VARGHESE, OMAPPURATHU HOUSE, KURISUMOODU P.O., CHANGANACHERRY. 3. THE ORIENTAL INSURANCE COMPANY LTD., CHANGANACHERRY. ADV. SRI.O.D.SIVADAS FOR R2 SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.162 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.320/2002 of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal awarding a compensation of Rs. 45,980/- for the loss caused to her on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant is a lady aged 45 and was working as Junior Superintendent in the office of Deputy Directorate(Education), Kottayam and was drawing a salary of Rs. 7,801/-. On April 10, 2000, while the petitioner was travelling in a scooter bearing Reg.No.KL5D/7481 from east to west along the side of Changanacherry-Vazhoor road and when she reached at Choolappady Bhagom at about 2.15 p.m., a bus bearing Reg.No.KRK 9666 came from behind at a high speed and hit on the back side of the scooter as a result of which the claimant fell on the side of the road and sustained MACA.No.162/2006 2 severe injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending bus by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 1,75,000/-. 3. Respondents 1 and 2, the driver and owner of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending bus filed a written statement admitting the policy, but contending that there was also negligence on the part of the claimant. 4. Exts.A1 to A11 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 bus by first respondent and awarded a compensation of Rs. 45,980/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.162/2006 3 5. Heard the counsel for appellant and that of 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 claimant sustained fracture of transverse process left side L5 vertebra and fracture of iliac crest. Ext.A6 is the copy of wound certificate. Ext.A7 is the discharge certificate issued from Taluk Head Quarters Hospital, Changanacherry. She was admitted in the hospital on 10-04-2000 and was discharged on 24-04-2000. Ext.A8 is the O.P. ticket . 8. The Tribunal awarded a total compensation of Rs. 45,980/-. The break up of the award amount is as under : Pain and suffering -Rs. 12,000/- Loss of leave -Rs. 15,000/- Damage to clothing -Rs. 300/- Transportation -Rs. 1,000/- Medical expenses -Rs. 2,000/- Loss of earning -Rs. 7,680/- MACA.No.162/2006 4 Loss of enjoyment of amenities -Rs. 8,000/- ----------------- Rs.45,980/- ========== 9. Ext.A9 certificate of disability issued by Senior Lecturer in Orthopaedics, Medical College Hospital, Kottayam shows that the claimant has a functional disability of 9%. The Tribunal took the disability as 4% as the claimant is still working as Junior Superintendent . The Tribunal did not award any compensation for the disability caused. But taking into account the fact that her disability would affect her retired life, the Tribunal took her monthly income as Rs. 2000/- and adopted a multiplier of 8 and awarded Rs. 7680/- for the disability caused and consequential loss of earning. For loss of amenities and enjoyment of life, Rs. 8,000/- was awarded. 10. The counsel for appellant produced a copy of Ext.A9 for our perusal which shows that the claimant has now the following disabilities : Tenderness (L)Sacroiliac joint, lembo sacral joint. Movements of spine painful (L)Hip -Terminal 30 abduction and 20 rotations restricted. Difficulty in squatting. X -ray Pelvis - Union of fracture ilium (L) & L5 transverse MACA.No.162/2006 5 process with 10 inferior angulation. 11. Therefore, we feel that the said certificate can be accepted and her disability can be fixed at 9% as described therein. Ext.A10 the salary certificate issued by the Administrative Assistant, Deputy Directorate (Education), Kottayam shows her monthly salary as Rs. 7801/- which can be accepted. The multiplier adopted by the Tribunal as 8 is not seriously disputed. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 67,400/-. 12. There is another aspect. For the loss of leave, the Tribunal awarded Rs. 15,000/-. Ext.A11 certificate shows that she has taken 148 days of commuted leave and 31 days of Earned Leave. Thus, she has taken about six months leave due to the injury sustained in the accident. Therefore, towards loss of earning, she is entitled to a compensation of Rs. 40,000/- i.e. salary for six months. Thus on this count, she is entitled to an additional compensation of Rs. 25,000/-. Regarding the compensation awarded under other heads, we are not disturbing the same as the same appears to be reasonable. The Tribunal awarded MACA.No.162/2006 6 interest only at the rate of 6% per annum which appears to be very low. Therefore for the entire compensation including the compensation already awarded the claimant is entitled to interest @ 9% per annum from the date of petition till realisation. 13. Thus the claimant is entitled to an additional compensation of Rs.92,400/- . She is entitled to interest @ 9% per annum from the date of petition till realisation on the entire compensation awarded and proportionate cost. Third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment before the Tribunal. The award passed by the Tribunal is modified to that effect. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.162/2006 7