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 6TH APRIL 2010 / 16TH CHAITHRA 1932 MACA.No. 637 of 2007() ---------------------- OPMV.1035/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ----------------------------------- SULAIMAN, S/O.NEENA, RESIDING AT CHETTUKUDI HOUSE, MUTHUVANKUDI, CHEMKULAM, CHETTUKUDY, ADIMALY, IDUKKI (BED REIDDEN) REP.BY HIS WIFE JAMEELA, W/O.SULAIMAN, RESIDING AT CHETTUKUDI HOUSE, ADIMALY, IDUKKI. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENT(S): RESPONDENTS --------------- 1. TAJ, S/O.REHIMAN, MANNSPURATHIL HOUSE, POTTANKADU P.O., BAISON VALLY, IDUKKI. 2. SHAJU, S/O. REHIMAN, MUNJANATTU HOUSE, 20 ACRE, POTTANKADU, IDUKKI. 3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO.LTD., KATTAPPANA, IDUKKI DISTRICT. 4. M/S.K.M.S. TIMBERS, PROP.K.M. MEERAN, MUNNAR. 5. THE BRANCH MANAGER, THE NATIONAL ISNURANCE CO.LTD., KOLENCHERRY. ADV. SMT.P.K.SANTHAMMA FOR R3 SRI.P.JACOB MATHEW FOR R5 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.637 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1035/2003 of Motor Accidents Claims Tribunal, Muvattupuzha challenges the judgment and award of the Tribunal dated September 26, 2006 awarding a compensation of Rs.3,16,620/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : On February 27, 2003, the claimant was travelling in the jeep bearing Reg.No.KL-7W/6109 driven by the second respondent. Due to the rash and negligent driving of the said jeep by the second respondent, it collided head on with the lorry bearing Reg.No.KL- 7AG/2330. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending lorry by second respondent. First respondent as the owner, M.A.C.A.No.637/2007 2 second respondent as the driver and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. Respondents 4 and 5 are the owner and insurer of the lorry involved in the accident. Claimant claimed a compensation of Rs. 10 lakhs. 3. Respondents 1, 2 and 4 remained absent before the Tribunal and were set ex parte by the Tribunal. Respondents 3 and 5, the Insurance Companies of the respective vehicles filed separate written statements admitting the policy. The third respondent, the insurer of the offending jeep in the written statement contended that the accident occurred due the negligence on the part of the driver of the lorry. The third respondent further contended that the policy issued in respect of the jeep covers five passengers and that therefore he is not liable to indemnify the first respondent, the owner with regard to the liability towards the persons exceeding five in number. 4. This O.P. was jointly tried along with the other claim petitions filed by the other passengers of the jeep and a common award was passed. PW1 was examined and Exts.A1 to A51 were marked on M.A.C.A.No.637/2007 3 the side of the claimant. On the side of the contesting third respondent, copy of the policy Ext.B1 was marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the second respondent, the driver of the offending jeep and awarded a compensation of Rs. 3,16,620/-. 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 Companies. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second 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 claimant sustained paraplegia due to the injury sustained in the accident. Exts.A7 and A8, copy of the wound certificates show that claimant has suffered paraplegia. Ext.A10, the treatment certificate issued from the Ernakulam Medical Centre shows M.A.C.A.No.637/2007 4 that claimant has contusion on the neck, left forearm and weakness of both lower limbs. MRI scan showed spinal cord contusion at C7-T1 level. Ext.A11 discharge summary issued from the Ernakulam Medical Centre shows that claimant developed weakness of both lower limbs. On scanning it was found that claimant has contusion in the cervical cord at C7, D1 level, anterior weaging of D1 body with mild retropulsion, posterior elements fracture involving C6 and C7 vertebra with ligamentum flavum injury at C6-C7, C7-D1 levels. He was hospitalised several times. Ext.A18, certificate of disability issued by the Medical Board, Idukki shows that claimant has a disability of 58%. PW1, one of the member of the Medical Board, gave evidence to the effect that claimant has now bowel incontinence and has lost control over urinary bladder and bowel. 8. The Tribunal awarded a total compensation of Rs.3,16,620/-. The break up of the compensation awarded is as follows : Loss of earnings - Rs. 24,000/- Transport to hospital - Rs. 5,000/- M.A.C.A.No.637/2007 5 Damage to clothing - Rs. 500/- Extranourishment - Rs. 2,500/- Treatment expenses - Rs. 79,000/- Bystander expenses - Rs. 7,500/- Pain and suffering - Rs. 25,000/- Disability caused - Rs. 1,53,120/- Loss of amenities and enjoyment of life - Rs. 15,000/- Loss of marital life - Rs. 5,000/- ----------------- Total - Rs. 3,16,620/- =========== 9. Counsel for the claimant sought enhancement of the compensation for the disability caused, loss and amenities and enjoyment of life and towards bystander expenses. We find force in the above contention of the counsel for the appellant. The Tribunal took the monthly income of the claimant as Rs. 2,000/- which appears to be very low. No document was produced to prove the income of the claimant. He was aged only 44 at the time of the accident. Therefore, M.A.C.A.No.637/2007 6 even as a coolie, he would have earned Rs. 100/- per day. Therefore, we feel that his monthly income can be reasonably estimated at Rs. 3,000/-. The Tribunal took the multiplier as 11 on the assumption that he was aged 50 at the time of the accident. But in the petition, it was stated that he was aged only 44 at the time of the accident. Before this court, the claimant produced the copy of the extract of the school Admission Register which shows his date of birth as 23/6/1958. Therefore, he was aged about 44 at the time of the accident. That being so, a multiplier of 15 would be reasonable in this case. The disability assessed as 58% by the Medical Board is not seriously challenged. Thus calculated for the disability caused, claimant is entitled to a compensation of Rs. 3,13,200/- ( 58% of 3,000/- x 12 x 15). Thus, on this count, the claimant is entitled to an additional compensation of Rs. 1,60,080/-. 10. For the pain and suffering endured, Rs. 25,000/- was awarded by the Tribunal which appears to be very low. Taking into consideration the nature of the injury sustained and the period of treatment the claimant has undergone, we feel that a compensation of M.A.C.A.No.637/2007 7 Rs. 30,000/- would be reasonable on this count. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 5,000/-. 11. For the loss of amenities and enjoyment of life, Rs. 15,000/- was awarded by the Tribunal. Taking into consideration the fact that claimant is now paraplegic, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. Thus, on this count the claimant is entitled to an additional compensation of Rs. 5,000/-. 12. For the bystander's expenses, only Rs. 7,500/- was awarded by the Tribunal which appears to be very low. Taking into consideration the fact that claimant is now paraplegic, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Thus, on this count, claimant is entitled to an additional compensation of Rs. 7,500/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. Thus, the claimant is entitled to an additional compensation of Rs. 1,77,580/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third M.A.C.A.No.637/2007 8 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. M.A.C.A.No.637/2007 9