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 3RD MARCH 2011 / 12TH PHALGUNA 1932 MACA.No. 173 of 2010() ---------------------- OPMV.1415/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/PETITIONER --------------- PRASAD, S/O.LATE KUNJU KUNJU, PRABATH BHAVAN, TC 80/1759, NEAR JAWAHAR SMARAKAM, TITANIUM P.O., THIRUVANANTHAPURAM-21. BY ADV. SMT.K.N.RAJANI RESPONDENTS/RESPONDENTS --------------- 1. IBRAHIMKUTTY, S/O.SULAIMAN KUNJU, SAJEENA MANZIL, MAYYANADA, KOLLAM DISTRICT.( DELETED 2. M/S. NEW INDIA ASSURANCE CO. LTD, DIVISIONAL OFFICE NO.1., KOTTARATHIL BUILDING, ANNEXE, PALAYAM, THIRUVANANTHAPURAM-1. FIRST RESPONDENT DELETED AT THE RISK OF THE APPELLANT VIDE ORDER DATED 20-12-2010 IN I.A.NO.3333/10. ADV. SRI.M.JACOB MURICKAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.173 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1415/2003 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. In this appeal he challenges the judgment and award of the Tribunal dated February 13, 2009 awarding a compensation of Rs.1,62,250/-/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on August 8, 2003 at about 6.30 a.m. : Degloving injury 20 x 7 cm. over upper and middle 3rd of right tibia exposing tibia and crushing the muscle. X-ray revealed fracture of right fibula, medial collateral ligament injury right knee and sprain of cervical spine. 2. The accident happened while the claimant was riding his motor cycle bearing Reg.No.KL-01/Y-5471 along All Saint's -Titanium public road. When he reached near Balavan Nagar Colony, he was knocked down by an Ambassador car bearing Reg.No.KLQ-9108 driven by the first respondent. Alleging negligence against the first MACA.No.173/2010 2 respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,00,000/-. 3. Respondent No. 1, 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. 4. Exts.A1 to A20 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. 1,62,250/- with interest @ 7.5% per annum from the date of petition till realisation. 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 counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal MACA.No.173/2010 3 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 Tribunal awarded a total compensation of Rs.1,62,250/-. The break up of the compensation amount awarded is as under: Loss of earning - Rs. 30,000/- Medical and incidental exp. - Rs. 21,000/- Transportation - Rs. 2,000/- Extra nourishment - Rs. 2,000/- Engaging a bystander - Rs. 5,000/- Damage to clothing - Rs. 250/- Pain and suffering - Rs. 30,000/- Disability - Rs. 54,000/- Loss of amenities -Rs. 18,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/- and took the percentage of disability as 15% and adopted a multiplier of 15 and awarded Rs. 54,000/- for the disability caused. MACA.No.173/2010 4 According to the claimant, he was an unloading worker attached to Travancore Titanium Products Limited earning Rs.7,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,500/-. In Ext.A12 and A15 disability certificates, the doctor has assessed the disability at 13% and 8% respectively. In the light of the said disability certificates, the percentage of disability as 15% taken by the Tribunal appears reasonable. The multiplier of 15 taken by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 94,500/- ( 15% x 3500 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs.40,500/-. 10. The Tribunal awarded Rs.18,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensated of Rs. 25,000/- would be reasonable on this count. 11. There is another aspect in this case. The Tribunal awarded Rs. 30,000/- towards loss of earnings for 15 months @ Rs. 2,000/- per MACA.No.173/2010 5 month. As we have fixed the monthly income of the claimant as Rs. 3,500/-, he is entitled to a compensation of Rs. 52,500/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 22,500/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 70,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The second 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. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.173/2010 6 MACA.No.173/2010 7