IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 MACA.No. 331 of 2006 ------------------------------------ OPMV.120/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: K.T.ANTONY, S/O.LATE THOMAS, AGED 43, DRAMA ARTIST BY PROFESSION, RESIDING AT KAIPANANIKKAL HOUSE, KAKKENGAD PO. BY ADV. SRI.V.RAJAGOPAL RESPONDENTS/RESPONDENTS: 1. PONNAN HAMEED, S/O.KUNHAMMED, AGED 26, RESIDING AT PONNAN HOUSE, KAVUMPADY P.O. THILLANKERY, DRIVER KL-13/C. 7315 JEEP. 2. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, THALASSERY. 3. PUTHIYAPURAYIL NUSRATH, W/O.A.K.BASHEER KAREEL HOUSE, KAVUMPADY P.O. THILLANKERY, (SULLP .4TH RESPONDENT LEGAL REPRESENTATIVE OF DECEASED R1 IMPLEADED AS PER ORDER ON IA 4421/02 AND AMENDED AS PER ORDER ON IA NO.4422/2002 DATED 30.9.2002). ADV. SRI.JOHN JOSEPH VETTIKAD FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.331 of 2006 --------------------------------- JUDGMENT Koshy, J. The appellant/claimant sustained injuries in a motor accident. The Tribunal found that the accident occurred due to the negligent driving of the vehicle KL-13/C 7315 by the first respondent. The vehicle was insured by the second respondent Insurance Company. The Tribunal awarded a total compensation of Rs.56,000/- and directed the Insurance Company to deposit the amount. Since the first respondent driver was not having valid driving licence at the time of the accident, the Insurance Company was given freedom to recover the amount from the owner and driver of the offending vehicle. The only dispute raised in this appeal by the appellant is regarding the quantum of compensation. MACA 331/06 2 2. According to the claimant, he was a drama artist. Exhibit A9 agreement shows that he was getting Rs.400/- per day for drama performance. Exhibit A10 is a paper cutting, which proves that he was an active drama artist. The Tribunal has taken Rs.2,000/- as the monthly income against a claim of Rs.6,000/-. There is no material to show that he was getting Rs.6,000/- per month. Even if he was getting Rs.100/- per day, taking that he may get opportunity to have almost 2-3 performances of drama in a week, he will get at least Rs.2,500/- per month. So, we fix the monthly income at Rs.2,500/-. As far as his injuries are concerned, the wound certificate would show that he had fracture of commutated left tibia apart from deep lacerated wounds. With regard to the disability, the Tribunal observed as follows: “Exhibit A12 is the disability certificate produced. Exhibit A12, the disability certificate MACA 331/06 3 reads as follows: “The Medical Board has examined Sri.Antony.K.T., S/o Thomas (late), Kaipananikkal House, P.O.Kakkengad on this day and found that he is Physically/ Orthopaedically handicapped due to the following defects: An adherent scar on the anterior part of the (L)left 15 x 5 cms size. Percentage of disability 10% (Ten percentage). Identification Marks: (1) A wound scar 2 cm below (L) eye. (2) A black mole on the left side of chest 3 cm above and medial to (L) nipple. 1. Dr.U.Jayaprakash, Professor of Orthopaedics, ACMC, Pariyaram, 2. Sarala Devi, Professor, Medical College, Pariyaram, 3. Asha.P.V., Asst. Professor, Ophthalmologist, 4.Dr.Sajithkumar.V.I., Professor, ENT, 5. Dr.Sona Jacob, Asst. Professor.” MACA 331/06 4 But, even though the Tribunal did not accept the same, Rs.5,000/- was awarded for disability. It is true that the actual disability is not certified. Considering the nature of injuries and nature of his employment, we are of the opinion that compensation for at least 5% disability ought to have been granted. He was aged 38 at the time of the accident. 16 is the apt multiplier. Therefore, the compensation payable for 5% disability will be Rs.24,000/- (2500 x 12 x 5/100 x 16). The Tribunal has awarded only Rs.5,000/-. So, the additional amount payable will be Rs.19,000/-. The Tribunal awarded an amount of Rs.10,000/- towards compensation for loss of actual earnings. We award Rs.1,000/- more on that head. Therefore, the additional amount payable comes to Rs.20,000/-. The above amount shall be deposited by the second respondent Insurance Company with 7.5% interest from the date of application till its deposit over and above the compensation awarded by the Tribunal. MACA 331/06 5 After deposit of the amount, the Insurance Company is allowed to recover the amount from the insured, the owner of the vehicle involved in the accident as directed by the Tribunal. Since the owner of the vehicle died pending the claim petition, his wife was impleaded as the supplemental fourth respondent, who is the third respondent in the appeal. Therefore, the amount can be recovered only from the assets, if any, inherited from the first respondent by the supplemental fourth respondent in the claim petition (third respondent in this appeal). The appeal is partly allowed. (J.B.Koshy, Judge) 22nd September, 2008 (K.P.Balachandran, Judge) tkv