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 13TH JULY 2010 / 22ND ASHADHA 1932 MACA.No. 371 of 2010(A) ----------------------------------- (O.P.(MV).NO.619/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA) .................... APPELLANT/PETITIONER: ------------------------------------- RAFEEK, S/O.ASEES, THOTTIPARAMBIL POOPPARA KARA, SANTHANPARA VILLAGE. BY ADVS. SRI.MATHEW JOHN (K), SRI.AJEESH K.SASI. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. JESSY, W/O.GEORGE, THAKIDIPURATHU, VATTAPPARA BHAGAM, PAMPADUMPARA POST, PARATHODU VILLAGE. 2. THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM. 3. MAHESHKUMAR.R., S/O.RAMACHANDRAN NAIR, PUTHENMADATHIL HOUSE, KAUNTHI KARA, PAMBADUMPARA VILLAGE. R3 BY ADV. SRI.P.G.GANAPPAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 371 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 13th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P. (MV) No.619 of 2005 of Motor Accidents Claims Tribunal, Thodupuzha. He sustained the following injuries in a motor accident that occurred on May, 26, 2005 at about 9 p.m. at Nedumkandom near Sreekrishna Temple:- 1) Multiple abrasion on right forehead and right thumb 5 x 3 cm. 2) LW base of right big toe with fracture proximal phalanx exposed. 3) Disarticulation PIP joint. second toe and the distal toe hanging by plantar skin. Ext.A8 showed that amputation of right first and second toe was done. X ray showed fracture of proximal phalanx great toe, dislocation in PIP joint. 2. According to the claimant, on May 26, 2005 he was driving an auto-rickshaw bearing registration No.KL- 7AU/7909 from Thookkupalam to Pooppara and when he MACA 371/2010 2 reached near Sreekrishna Temple, Nedumkandom, a jeep bearing registration No.KL-6/3116 dashed against the auto- rickshaw, while attempting to overtake the auto-rickshaw. The claimant filed O.P. before the Tribunal under section 166 of the Motor Vehicles Act, alleging negligence against the third respondent, driver of the jeep. Respondents 1 and 2 are the owner and insurer of the offending jeep. The claimant claimed a compensation of Rs.4 lakhs. 3. Respondents 1 and 3, the owner and driver of the offending jeep, remained absent before the Tribunal. The second respondent, the insurer of the offending jeep, filed a written statement, admitting the policy. 4. Claimant was examined as PW1 and Exts.A1 to A13 were marked on the side of the claimant before the Tribunal. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the negligence on the part of the third respondent and awarded a compensation of Rs. 1,65,300/- with interest at 9% per annum from the date of petition till realization and costs. MACA 371/2010 3 The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for 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 third 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 Tribunal awarded a total compensation of Rs.1,65,300/-. Break up of the compensation awarded is as under :- Loss of earning : Rs. 4,000/- Transportation expense : Rs. 10,000/- Extra-nourishment : Rs. 2,000/- Damage to clothing : Rs. 500/- Treatment expense : Rs. 25,432/- Bystander's expense : Rs. 1,500/- Loss of amenities and : Rs. 10,000/- enjoyment in life. Loss of marriage prospects : Rs. 15,000/- Pain and sufferings : Rs. 20,000/- Permanent disability : Rs. 76,800/- MACA 371/2010 4 -------------------- Total : Rs.1,65,232/- Rounded to : Rs.1,65,300/- ======== 8. The learned counsel for appellant sought enhancement of compensation towards the disability caused. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/-, adopted multiplier of 16, took the percentage of disability as 20% and awarded Rs.76,800/- for the disability caused. The claimant as PW1 testified that as an auto-rickshaw Driver, he used to earn Rs.5,000/- per month. Ext.A9 is a copy of his driving licence. Therefore, we feel that his monthly income can reasonably be fixed at Rs.3,000/-. The claimant was aged 19 at the time of the accident. Therefore, multiplier of 16 adopted by the Tribunal appears to be reasonable. Percentage of disability adopted by the Tribunal as 20% is also not seriously disputed which is also proved by Ext.A13 disability certificate issued by the Medical Board of Taluk MACA 371/2010 5 Headquarter's Hospital, Thodupuzha. Thus, for the disability caused and for the consequential loss of earning power, the claimant is entitled to a compensation of Rs.1,15,200/- (Rs.3,000/- x 12 x 16 x 20%). Thus, on this count, the claimant is entitled to an additional compensation of Rs.38,400/- . 10. There is another aspect in this case. The Tribunal awarded Rs.4,000/- towards loss of earnings for two months at the rate of Rs.2,000/- per month. As we have fixed monthly income of the claimant as Rs.3,000/-, he is entitled to a compensation of Rs.6,000/- for loss of earnings. Thus, the claimant is entitled to an additional compensation of Rs.2,000/- on this count. As regards the compensation granted 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 an additional compensation of Rs.40,400/-. He is entitled to interest @ 9% per annum from the date of petition till realization. The second respondent being the insurer of the MACA 371/2010 6 offending jeep, shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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.