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 17TH JUNE 2010 / 27TH JYAISTHA 1932 MACA.No. 150 of 2004(D) ------------------------------- OPMV.351/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/APPLICANT ---------------------------------------------------------- ARUN, S/O. VARGHESE NADAR, V.S.BHAVAN, KALLIMGAL, VLATHAMKARA, CHENKAL P.O., THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): RESPONDENTS --------------------------------------------- 1. R.SIVASANKARAN, HOUSE NO. 17/364, PRASANTH, KRISHNAPURAM, NEYYATTINKARA P.O 2. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD., THIRUVANANTHAPURAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------- M.A.C.A NO. 150 OF 2004 ------------------------------------- DATED THIS THE 17TH DAY OF JUNE, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV)No.351/01 on the file of Motor Accidents Claims Tribunal, Neyyattinkara challenges the judgment and award of the Tribunal dated August 12, 2003 awarding a compensation of Rs. 80,840/- 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: On Februay 16, 2001 at about 4.05p.m., the claimant was riding a motor cycle bearing registration No. KL-01-C-4428 from Neyyattinkara to Amaravila. When he reached at Gramam an autorikshaw bearing registration No. KL-01-T.7019 driven by the 2nd respondent came at a high speed and dashed against motor cycle of the claimant. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the driver of the autorikshaw. The first respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending autorikshaw are jointly and severally liable to pay compensation M.A.C.A NO. 150 OF 2004 2 to the claimant. The claimant claimed a compensation of Rs. 4,00,000/-. 3. The 1st respondent, the owner of the offending autorikshaw remained absent and was set ex-parte by the Tribunal. The 2nd respondent, the driver of the offending vehicle was removed from the party array by the Tribunal on the request of the claimant. The 3rd respondent, the insurer of the offending autorikshaw filed a written statement admitting the policy, but further contended that there was also negligence on the part of the 2nd respondent. 4. The claimant was examined as PW1 and Exts. A1 to A8 series were marked on the side of the claimant. On the side of contesting 3rd respondent Ext. B1 was marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent, the driver of the offending autorikshaw and awarded a compensation of Rs. 80,840/- with interest @ 9% per annum from the date of petition till realization and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the M.A.C.A NO. 150 OF 2004 3 counsel for the Insurance Company. 6. The claimant sustained the following injuries as revealed from Ext.A3, the copy of the wound certificate and Ext.A4, the copy of the OP ticket and Ext.P5 series of referral OP card. (i)Abrasions on the (R) heel 3 x 1cm (ii)Fracture both bones (R)lower leg. (iii)Abrasion on the(R)shoulder (iv)Abrasion on the(R)elbow 7. Ext.A6, certificate of disability issued by the Doctor, Medical College Hospital, Thiruvananthapuram shows that the claimant has a permanent disability of 16%. 8. The Tribunal awarded a total compensation of Rs.80,840/-. The break up of the compensation awarded is as under: Pain and suffering : Rs. 12,000 Loss of earnings : Rs. 6,000 (@ Rs.2,000 per month for 3 months) Medical expenses : Rs. 4,000 Damage to clothing : Rs. 500 Transport to hospital : Rs. 1,500 Disability caused : Rs. 51,840 For the discomfort & : Rs. 5,000 inconvenience caused -------------- Total : Rs. 80,840 ====== 9. The counsel for the claimant sought enhancement of the M.A.C.A NO. 150 OF 2004 4 compensation for the disability caused and for loss of amenities and enjoyment of life. 10. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and took the percentage of disability as 12% and adopted a multiplier of 18 and awarded a compensation of Rs. 51,840/- for the disability caused. According to the claimant, he is an organ player in ganamela troops and used to earn Rs. 6,000/- per month. Taking into consideration of the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. The percentage of disability assessed by the Tribunal as 12% and the multiplier adopted as 18 are not seriously challenged. Therefore, the claimant is entitled to a compensation of Rs. 77,760/- for the disability caused (Rs. 3000X12x18x12%). Thus on this count, the claimant is entitled to an additional compensation of Rs. 25,920/-. 11. The Tribunal did not award any compensation for the loss of amenities and enjoyment of life. Taking into consideration the nature of injuries sustained and the period of treatment he had undergone, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. 12. There is another aspect in this case. The Tribunal awarded M.A.C.A NO. 150 OF 2004 5 loss of earnings for three months @ Rs. 2,000/- per month. Now we have fixed monthly income of the claimant as Rs. 3,000/-. Therefore, towards loss of earnings, claimant is entitled to Rs. 9,000/-. Thus, the claimant is entitled to an additional compensation of Rs. 3,000/- on this count. As regards compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. Thus, the claimant is entitled to an additional compensation of Rs. 38,920/-. He is entitled to interest at the rate 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 M.A.C.A NO. 150 OF 2004 6 pkk