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. 29 of 2005() --------------------- OPMV.1570/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/APPLICANT --------------------------------- G.S.RAJESH S/O. C.GOPINATHAN NAIR, SARAS BHAVAN, KOOVALASSERY P.O., NEYYATTINKARA. BY ADV. SRI.G.SUDHEER RESPONDENT(S): RESPONDENTS 1 TO 4 --------------------------------- 1. R.KESAVA PERUMAL, VINAYAKAR STREET, BALARAMAPURAM P.O., NEYYATTINKARA. 2. SANTHOSH KUMAR C., POOVANVILA VEEDU, VADACODE, PERUMPAZHUTHOOR P.O., NEYYATTINKARA. 3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, THIRUVANANTAHPURAM. 4. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, THIRUVANANTHAPURAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2010 ALONG WITH MACA NO. 50 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.29 & 50 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June, 2010 JUDGMENT Barkath Ali, J. These appeals under Section 173 of Motor Vehicles Act arise out of a common award passed by the Motor Accidents Claims Tribunal, Neyyattinkara in O.P.(MV)Nos.1570/2001 and 1571/2001 dated April 27, 2004. M.A.C.A.No.29/2005 is directed against the award in O.P. (MV)No.1570/2001 awarding a compensation of Rs. 41,650/- for the loss caused to the claimant therein on account of the injury sustained by him in a motor accident. M.A.C.A.No.50/2005 is directed against the award in O.P.(MV)No.1571/2001 awarding a compensation of Rs. 33,390/- for the loss caused to the claimant therein on account of the injury sustained by him in the same motor accident. 2. The facts leading to this appeal in brief are these : On August 24, 2001 at about 5.30 p.m., the claimant in O.P.(MV) No.1570/2001 was pillion riding on the motor cycle bearing Reg.No.KL-01-Q-9271 ridden by the claimant in O.P.(MV) MACA.Nos.29 & 50 of 2005 2 No.1571/2001 along Kattakkada-Nayyattinkara public road. When they reached at Alampotta. a trucker bearing Reg.No.KL-01-H-9100 came at a high speed from the opposite side and dashed against the motor cycle of the claimants. Claimants sustained serious injuries. According to the claimants, the accident occurred due to the negligence on the part of the driver of the trucker, second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending trucker are jointly and severally liable to pay compensation to the claimants. 3. Respondents 1 and 2 in both these O.Ps. remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending trucker filed a written statement admitting the policy, but contended that there was also negligence on the part of the rider of the motor cycle i.e. claimant in O.P.(MV)No.1571/2001. In O.P.(MV) No.1571/2001, the insurer of the motor cycle was made a party as fourth respondent. Fourth respondent filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the second respondent. Both these O.Ps. were jointly tried and disposed of by a common MACA.Nos.29 & 50 of 2005 3 award. Therefore, both these appeals are disposed of together. 4. Pws 1 and 2 were examined and Exts.A1 to A17 were marked on the side of the claimants before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 41650/- in O.P.(MV)No.1570/2001 and Rs. 33,390/- in O.P.(MV)No.1571/2001 with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for 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 driver of the trucker, second respondent is not challenged in these appeals. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. M.A.C.A.No.29/2005 7. The claimant in O.P.(MV)No.1570/2001, PW1, sustained MACA.Nos.29 & 50 of 2005 4 the following injuries as revealed from Ext.A4, the copy of the wound certificate issued from the Taluk Hospital, Neyyattinkara and Ext.A5, Medical case sheet issued from the Military Hospital, Thiruvananthapuram: Colles fracture ( R) , Comminuted fracture shaft of ( R) femur, comminuted fracture lower end of ( R) radius and ulna, skeltal traction applied and BK slab applied, POP slab applied above elbow. 8. Claimant was admitted in the Military Hospital from 28-8-2001 to 3-9-2001 and in Command hospital from 26-10-2001 to 9-2-2002. The claimant was aged 30 and was working as a Naik in the Indian Army. Ext.A10 is his salary certificate. 9. The Tribunal awarded a total compensation of Rs. 41,650/-. The break up of the compensation awarded is as under : Pain and suffering - Rs. 15,000/- Treatment expenses - Rs. 2,000/- Transportation expenses - Rs. 2,000/- Damage to clothing - Rs. 250/- Disability - Rs. 14,400/- Loss of amenities - Rs. 8,000/- MACA.Nos.29 & 50 of 2005 5 10. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 11. 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 5 and awarded Rs.14,400/-for the disability caused. The claimant was working in the Indian Army as Naik. Ext.A10 his salary certificate shows that he was drawing a salary of Rs. 7,500/-. He is admittedly still in service. Therefore for assessing the compensation for the disability caused, we feel that his monthly income can be reasonably fixed at Rs. 3,000/-. The percentage of disability fixed by the Tribunal as 12% is not seriously challenged. The Tribunal adopted a multiplier of 5 on the ground that his disability will affect him only after retirement. But as a result of the injury sustained by him, he is posted in the lower medical category in the Army as seen from Ext.A9, the proceedings of putting him in lower medical category. Therefore, he is entitled to compensation for the disability caused. He was aged only 30 at the time of the accident. Therefore, the proper multiplier that can be adopted is 17. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 73,440/- ( 12% MACA.Nos.29 & 50 of 2005 6 x 3000 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.59,040/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. M.A.C.A.No.50/2005 12. The claimant in O.P.(MV)No.1571/2001 sustained the following injuries as revealed from Ext.A12, the copy of the wound certificate issued from Taluk Hospital, Neyyattinkara and Ext.A13, the O.P. ticket issued from Jubilee Memorial Hospital, Thiruvananthapuram and Ext.A15, scanning report : Laceration ( R) leg 7x 3 cm. skin deep exposing muscles, linear tear in body and posterior horn of lateral meniscus, thickening and altered signal intensity of anterior and posterior cruciate ligament, the margin of ACL ill defined in entire length, mild degree of fluid collection in suprapatellar bursa and its lateral recesses. 13. The Tribunal awarded a total compensation of Rs. 33,390/-. The break up of the compensation awarded is as under : MACA.Nos.29 & 50 of 2005 7 Pain and suffering - Rs. 8,000/- Loss of earnings - Rs. 3,000/- Treatment expenses - Rs. 7,500/- Transportation expenses - Rs. 1,000/- Damage to clothing - Rs. 250/- Disability - Rs. 8,640/- Loss of amenities - Rs. 5,000/- 14. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 15. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and took the percentage of disability as 2% and adopted a multiplier of 18 and awarded Rs. 8,640/- for the disability caused. The claimant in this case, PW2, was aged 26 at the time of the accident and was working as Physiotherapist in Corolla Hospital, Anappad and earning Rs.12,000/- per month. Ext.A17 is the certificate to that effect. Taking into consideration this aspect, we feel that his monthly income can be reasonably fixed at Rs. 2,500/-. The percentage of disability adopted by the Tribunal as 2% and the multiplier as 18 are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 10,800/- ( 2% x 2500 x 12 x 18). Therefore, on this count, the claimant is entitled to an additional compensation of Rs. 2,160/-. As regards the compensation awarded MACA.Nos.29 & 50 of 2005 8 under other heads, we find the same to be reasonable and therefore are not disturbing the same. In the result, the appellant/claimant in M.A.C.A.No.29/2005 is found entitled to an additional compensation of Rs. 59,040/- and the appellant/claimant in M.A.C.A.No.50/2005 is found entitled to an additional compensation of Rs. 2,160/-. They are entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third 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. Both these appeals are disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.Nos.29 & 50 of 2005 9