IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 MACA.No. 491 of 2004() --------------------------------- OPMV.900/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): /PETITIONER: -------------------------------------------- ABDUL RAHIMAN, S/O. MOHAMMED, AGED 30, DELAMPADY POST, KASARAGOD TALUK & DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENT NO.2 & 3 ------------------------------------------------------------- 1. LALLI DEVASIA, D/O. DEVASIA, KARIMPANAKUZHIYIL HOUSE, H.NO.551/VII, MALOM, BALAL, KASARAGOD TALUK & DISTRICT. 2. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., PAYYANNUR BRANCH, KANNUR DISTRICT. R2 BY ADV. SMT.P.A.REZIYA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/07/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss R.BASANT & N.K.BALAKRISHNAN, JJ. ----------------------------------------- M.A.C.A No.491 OF 2004 ---------------------------------------- Dated this the 4th day of July, 2011 JUDGMENT BASANT, J. Claimant/injured is the appellant. The court below under Section 163 A of the Motor Vehicles Act awarded an amount of Rs.78,500/- as compensation as against Rs.7,00,000/- claimed as per the details given below:- 1. Pain and suffering - Rs.5,000/-, 2. Medical expenses - Rs.15,000/-, 3. Loss of earnings - Rs.7,500/- (6 x 1,250/-) 4. Reduction in earning capacity - Rs.51,000/- (1250 x 12 x 17 x 8/100) ____________ Total Rs.78,500/- =========== 2. The appellant/injured/claimant claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the M.A.C.A No.491 OF 2004 2 claimant/appellant first of all prays that notwithstanding the fact that the claim was erroneously described as one under Section 163 A of the Motor Vehicles Act, the same may be reckoned as one under Section 166 of the Motor Vehicles Act. I.A No. 441 of 2010 has been filed for that purpose. No objection has been filed. We are persuaded to feel, in the facts and circumstances of this case, that the petition deserves to be allowed in the interests of justice. We note that though the claim was described to be one under Section 163A of the Motor Vehicles Act, definite allegations were made of negligence on the part of the driver of the other vehicle. In the same accident another person pillion of the motor bike which the appellant was rider, had also suffered injuries and he had filed claim for compensation under Section 166 of the Motor Vehicles Act. Both claims were considered together and in the impugned common award a specific finding of negligence on the part of the deceased were entered. Hence we feel that the prayer can be allowed. Accordingly, we allow the said petition. The claim shall be reckoned as one under Section 166 of the Motor Vehicles Act. 3. Before the Tribunal, Exts.A1 to A10 and B1 to B3 were M.A.C.A No.491 OF 2004 3 marked. Only the claimant was examined as PW1. 4. The learned counsel for the appellant, first of all, contends that the monthly income of the claimant reckoned by the Tribunal at Rs.1,250/- is perversely inadequate. The appellant was a young man aged about 24 years. He was a duly licenced to drive. A copy of the driving licence was produced to show that the driving licence was issued to him as early as on 1.12.1995. Even according to the undisputed case of the parties, he was the driver of one of the vehicles involved in the accident. In these circumstances, the presumption of prudence that the claimant was a driver must have been drawn, contends the counsel. Even in the absence of any better evidence, his income should have been assumed to be Rs.2,500/- per mensem. We are satisfied that the court below went wrong in reckoning his monthly income as only Rs.1,250/- i.e., the amount which even an unskilled manual labourer is assumed to earn under the Second Schedule of the Motor Vehicles Act which came into force with effect from 14.11.1994. In these circumstances, we agree with the learned counsel for the M.A.C.A No.491 OF 2004 4 appellant/claimant that the monthly income could easily have been reckoned at Rs.2,500/- per mensem. 5. The claimant was an inpatient from 24.4.1998 to 11.6.1998 (48 days). He had suffered depressed fracture of frontal bone of skull, supra condylar fracture of left femur, fracture both bones of the right leg and fracture of mid line palate. He had undergone surgical procedures including interlocking under general anesthesia on 3.6.1998 supra condylar ORIF plus mandibular fixation under general anesthesia on 13.5.1998 and craniotomy under general anesthesia on 24.4.1998. Even at the time of discharge, he was advised to take bed rest strictly for a period of one month. He was asked to appear for review after one month. Disability certificate -Ext.A5, produced indicates that though the fractures are united, there was limitation of permanent 10 degrees of dorsi flexion or right knee and 15 degrees of flexion of left knee. Disability was estimated and assessed at 20% of his body function. The Tribunal, in the absence of any better evidence, reckoned the reduction of earning capacity to be only 8%. Under the head of medical and M.A.C.A No.491 OF 2004 5 miscellaneous expenses against bills produced for Rs.86,374/-, only an amount of Rs.15,000/- was awarded reckoning the claim one under Section 163 A. No amount was awarded under the head of loss of amenities, bystanders' expenses, damage to clothing and extra nourishment. 6. The learned counsel for the appellant/claimant, in these circumstances, submits that the quantum of compensation awarded is painfully and perversely low. The award only an amount of Rs. 5,000/- towards pain and suffering in the facts and circumstances of this case is also not reasonable, fair and just, submits counsel. 7. We have taken into consideration all the relevant aspects and having considered all the relevant circumstances, we are of the opinion that the quantification of loss by the Tribunal is not fair and just when we consider the claim to be one under Section 166 of Motor Vehicles Act. We are of opinion that the appellant is entitled to the following amounts as compensation: 1. Pain and suffering - Rs.20,000/- (multiple fractures indicated above and multiple surgical procedures under general anesthesia undergone.) M.A.C.A No.491 OF 2004 6 2. Loss of earnings - Rs.7,500/- (6 months x 2,500/-). 3. Medical expenses - Rs.86,374/- (against bills actually produced before and verified by the Tribunal) 4. Bystanders' expenses, damage to clothing and extra nourishment - Rs.7,500/- (inpatient of 48 days), 5. Miscellaneous expenses - Rs.7,500/- (bystanders expenses, damage to clothing, extra nourishment and transportation to hospital -inpatient for 48 days at Mangalore.) 6. Reduction in earning capacity - Rs.1,02,000/- (2500x12x17x8/100) 7. Loss of amenities of life - Rs.12,500/- (global amount awarded) -------------------- Rs.2,43,374/- ============ 8. We are, in these circumstances, satisfied that the appellant is entitled to a total amount of Rs.2,43,374/- as compensation in modification of the impugned award. 9. In the result; M.A.C.A No.491 OF 2004 7 1. This appeal is allowed. 2. The impugned award is modified and it is held that the appellant is entitled to a total amount of Rs.2,43,374/- (Rupees two lakh forty three thousand three hundred and seventy four only) as per the details given above. 3. All other directions in the impugned order shall remain in force. Needless to say that the amount already paid will have to be deducted from the amount already awarded. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns