IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 MACA.No. 539 of 2007() ---------------------------- OPMV.698/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT/3RD RESPONDENT ------------------------------------ THE ORIENTAL INSURANCE CO. LTD., METRO PALACE, OPP. NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS ADMINISTRATIVE OFFICER. BY ADV. SRI.V.P.K.PANICKER RESPONDENT(S): RESPONDENTS 1 & 2 AND PETITIONER ------------------------------------------------------------------ 1. MRS. ELISA FERNANDEZ, W/O MARCEL FERNANDEZ, KUNCHALA GURI MANE, P.O.KULUSHEKARA, CHOWKI, MANGALORE. 2. LINGAPPA GOWDA, S/O CHEMEPPA GOWDA, YEKKA MANE, P.O.BANDUR, BELTHANGADI TALUK, MANGALORE. 3. T.K.NARAYANAN, S/O KUNHIKKANNAN NAIR, RESIDING AT THAKKAYIL HOUSE, P.O.NADAVATHUR, KOYILANDY, PIN-673 330. R.3 BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 539 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 14th day of December, 2010 JUDGMENT Barkath Ali, J. Appellant is 3rd respondent/Insurance Company in O.P. (MV) No.698 of 2001 on the file of the Motor Accidents Claims Tribunal, Vadakara. In this appeal the appellant challenges the judgment and award of the Tribunal dated July 31, 2006 awarding a compensation of Rs.5,94,600/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. Claimant in the O.P. sustained the following injuries in a motor accident that occurred on May 25, 2000 :- 1) Lacerated wound 4 x 1 bone deep occiptal region. 2) Fracture of left sigma. 3) Epistaxis. 4) Contusion on the servical code. 5) Fracture of servical spine and the subluxation of C3, C4 vertebra with minimal disk collapse and myelemalacia of the code. MACA 539/2007 2 At the time of the accident he was aged 55 and was working as Railway Shunting Master Panamboor at Mangalore. The accident happened while the claimant working near M.C.M. Factory Railway Gate, a lorry hit the railway gate and as a result of which he sustained injuries and become paraplegic. Alleging negligence against 2nd respondent in the O.P./driver of the offending lorry, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.6 lakhs. 3. Respondents 1 and 2 in the O.P., the owner and driver of the offending lorry, remained absent before the Tribunal. The 3rd respondent/insurer of the offending lorry filed a written statement admitting the policy. PW1 was examined and Exts.A1 to A13 and Exts.X1 to X3 were marked on the side of the claimant. Exts.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident happened due to negligence of the 2nd respondent in the O.P. and awarded a compensation of Rs.5,94,600/- with interest at 6% p.a. from the date of petition MACA 539/2007 3 till realization and cost of Rs.15,000/-. The 3rd respondent Insurance Company has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard learned counsel for the appellant and learned counsel for the 3rd respondent, claimant. 5. The finding of the Tribunal that the accident occurred due to the negligence of the 2nd respondent/driver of the lorry and that the claimant sustained injuries mentioned above in the accident are not challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the compensation awarded by the Tribunal is excessive. 6. Tribunal awarded a total compensation of Rs.5,94,600/-. Break up of the compensation awarded is as under:- 1) Pain and suffering : Rs. 50,000/- 2) Hospital expenses : Rs. 16,600/- 3) Mental shock and : Rs. 30,000/- inconvenience caused. 4) Permanent happy life : Rs. 30,000/- including the marital life. 5) Loss of income : Rs. 72,000/- 6) Permanent disability : Rs.3,96,000/- ------------------------- MACA 539/2007 4 Total : Rs.5,94,600/- ========= 7. The Tribunal took the monthly income of the claimant as Rs.6,000/-, took the percentage of disability as 50%, as assessed by the Medical Board, adopted a multiplier of 11 and awarded a compensation of Rs.3,96,000/- for the disability caused. 8. Learned counsel for the appellant contended that the monthly income taken by the Tribunal as Rs.6,000/- is on the higher side and that as the claimant was aged 55 at the time of the accident, the proper multiplier ought to have been adopted by the Tribunal 8 instead of 11. 9. As regards the monthly income taken by the Tribunal as Rs.6,000/-, we find force in the contention of the appellant that it is on the higher side. The claimant was working as a Railway Shunting Master at Panambcer, Mangalore. He was earning a salary of Rs.7,230/- as evidenced by Ext.A13 series pay slips. As he was aged 55 at the time of the accident, he has to retire at the age of 60 and will be earning pension. Therefore, we feel that the monthly income of the claimant for MACA 539/2007 5 the purpose of assessing the compensation for the disability caused can be taken as Rs.5,000/-. As regards the multiplier adopted by the Tribunal as 11 and the percentage of disability as 50% assessed by the Medical Board, we find the same to be reasonable. Thus, calculated for the disability caused, the claimant is entitled to a compensation of Rs.3,30,000/- (Rs.5,000/- x 12 x 11 x 50%) instead of Rs.3,96,000/-. 10. There is another aspect in this case. The Tribunal awarded Rs.72,000/- for the loss of earning for one year. As compensation is awarded for the disability caused and for loss of earning power, separate compensation should not have been awarded by the Tribunal towards loss of earning. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. In the result, the claimant is found entitled to a compensation of Rs.4,56,600/- instead of Rs.5,93,600/- awarded by the Tribunal. The Tribunal awarded interest only @ 6% per annum from the date of petition till realization, MACA 539/2007 6 which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization. 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 mn.