IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 MACA.No. 802 of 2006() ---------------------- OPMV.1909/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ---------------------------------- KUMARAN, S/O.PAILI, AGED 54 YEARS, RESIDING AT NETTINATTU HOUSE, THURUTHI P.O., PRAIAYAKKADUM VENGOOR WEST, PERUMBAVOOR. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): RESPONDENTS --------------- 1. P.I.YACOB, PAREKKARA HOUSE, KOTHAMANGALAM. 2. C.T.ELDHO, CHENGANADAN, RAMALLOOR, KOTHAMANGALAM. 3. ORIENTAL INSURANCE CO.LTD., KOTHAMANGALAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 802 of 2006 ------------------------------------------------------ Dated: JUNE 23, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1909/2002 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, challenges the judgment and award of the Tribunal, dated, January 16, 2006 awarding a compensation of Rs.3,37,500/- 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 a driver in Kerala Police Department earning Rs.7750/- per month. On June 16, 2002 at about 7.45 p.m. the claimant was riding a motorcycle bearing registration No.KL-7/AB 1788 from Kuruppumpady police station to IOC pump. At that time a bus bearing registration No.KL-7N/3115 driven by the 2nd respondent came at a high speed from the opposite side and dashed against the motorcycle. The claimant sustained serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 2nd respondent, driver of the bus. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending bus are jointly and severally liable to pay M.A.C.A. 802 of 2006 2 compensation to the claimant. 3. Respondents 1 and 2, the owner and the driver of the offending bus remained absent and were set ex parte by the Tribunal. The 3rd respondent, insurer of the offending bus, filed a written statement admitting the policy and further contended that there was negligence on the part of the claimant also. 4. Exts.A1 to A10 were marked on the side of the claimant before the Tribunal. On the side of the contesting 3rd respondent, Ext.B1 copy of the policy was marked. 5. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.3,37,500/- with interest at 6% 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. 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 is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is M.A.C.A. 802 of 2006 3 entitled to any enhanced compensation. 8. The claimant sustained the following injuries as revealed from Ext.A5, copy of the wound certificate, issued from the hospital:- “Type III C both bone fracture left leg. Pheumothorax with rib fracture left side with surgical emphysema. Deep lacerated (3 cm each) two wounds over scalp at left parietal region open wound left thumb IP joint. Laceration over thenar and hypothenar eminence left.” Ext.A6 treatment certificate shows that he was treated as an inpatient from June 16, 2002 to September 3, 2002. Ext.A9 disability certificate issued from the Specialists Hospital, Ernakulam shows that below knee amputation of left leg was done. 9. The Tribunal awarded a total compensation of Rs.3,37,500/-. The break up of the compensation awarded is as under:- loss of earnings for 6 months - Rs.9000/- partial loss of earnings - 75000/- transport to hospital - 1500/- extra nourishment - 7500/- damage to clothing - 500/- medical expenses - 83000/- attendant's expenses - 6000/- pain and suffering - 50000/- M.A.C.A. 802 of 2006 4 permanent disability - Rs.60000/- loss of amenities and enjoyment of life - 30000/- disfiguration - 15000/- ------------------- Total - Rs.3,37,500/- =========== 10. The Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused and on other heads. The petitioner was employed as a Driver in Kerala Police Department earning Rs.7750/- per month. Ext.A8 is the certificate issued by the officer commanding Headquarters, Coy. Ernakulam (Rural) showing his salary as Rs.6592/-. The Tribunal took the same as his monthly income. The claimant has produced Ext.A10, pension payment order, which shows that his date of retirement was 1.5.2006, but he was terminated from service on 29.3.2004. Therefore towards loss of earnings the Tribunal awarded Rs.75,000/- as compensation. But for the purpose of assessing his disability, his income was computed as Rs.15,000/- per annum and the Tribunal awarded a compensation of Rs.60,000/- for the permanent disability caused. No document is produced by the claimant to show the percentage of disability suffered by him. The Tribunal took the percentage of disability as M.A.C.A. 802 of 2006 5 50% as shown in Part II of Schedule I of Workmen's Compensation Act and adopted a multiplier of 8. Taking into consideration the fact that the claimant has suffered below knee amputation of left leg and that he is now getting pension, we feel that a compensation of Rs.1 lakh for the disability caused would be reasonable. Thus on this count, the claimant is entitled to an additional compensation of Rs.40,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. Thus the claimant is entitled to an additional compensation of Rs.40,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation 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 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 mt/-