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 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 MACA.No. 942 of 2007() ---------------------- OPMV.251/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT/CLAIMANT: ------------------------- M. RAJENDRAN, S/O.MURUGESHAN, AGED 44 YEARS, STATE WAREHOUSE, SULTHAN BATHERY, BATHERY POST, WAYANAD DISTRICT. BY ADV. SRI.P.V.JOY SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS/RESPONDENTS: --------------------------- 1. R.SADASIVAN, S/O.VASUDEVAN NAIR, AGED NOT KNOWN, MAYA NILAYAM, MADIYOORKUNNU, KALPETTA POST, WAYNAD DISTRICT. 2. SHIBU, S/O. E.K.VASU, AGED 21 YEARS, VEETTICHALIL VEEDU, KUPPADI, BATHERY TALUK, WAYNAD DISTRICT. 3. K.P.MOHAMMED, AGED AND FATHER'S NAME NOT KNOWN,KUNNAPPALLY HOUSE CHETTAPPALAM, MANANTHAVADY POST,WAYNAD DISTRICT. 4. THE UNITED INDIA INSURANCE COMPANY LTD., MAIN ROAD, KALPETTA BRANCH, KALPETTA POST, WAYNAD DISTRICT. 5. T.CHEKKU, S/O.MOHAMMED, THEKKEDAN HOUSE, NELLIMUNDA, MEPPADI P.O., WAYNAD DISTRICT. ADV. SRI.K.P.REGHURAJ FOR R3 SRI.P.SANKARANKUTTY NAIR FOR R.4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & B.Q. BARKATH ALI, JJ. ------------------------- M.A.C.A No.942 of 2007 -------------------------- Dated this the 23rd February, 2010 J U D G M E N T Barkath Ali,J. In this appeal under Section 173 of the Motor Vehicles Act, the claimant in O.P. (MV) No.251 of 1998 of Motor Accidents Claims Tribunal, Kalpetta, Wayanad challenges the judgment and award of the Tribunal dated December 8,2006 awarding a compensation of Rs.68,648/- for the loss caused to the claimant on account of the injury sustained in a motor accident. 2. The facts in brief are these: On December 7, 1997 at about 10.p.m the claimant was travelling in the Bus bearing Reg. No.KL-13/B 846 from Kalpetta to Sulthan Bathery. When the Bus reached near Parakkal, it collided head on with the Lorry bearing Reg. No.7646 which came from the opposite side. Respondents 1 and 2 are the owner and driver of the offending bus and respondents 3 and 6 are the owner and driver of the offending lorry and respondent No.5 is the insurer of both the vehicles. M.A.C.A No.942 of 2007 2 According to the claimant, the accident occurred due to the negligence on the part of the driver of both the vehicles and therefore all the respondents are jointly and severally liable to pay compensation to compensation to the claimant. 3. Respondents 1,2,4 and 6 remained absent and were set ex parte by the Tribunal. Respondents 3 and 5 filed a written statement admitting the policy. 4. The claimant was examined as PW1 and Exts.A1 to A9 were marked on the side of the claimant. Disability certificate was marked as Ext.C1. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.68,648/- with interest at the rate of 6% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the drivers of both the vehicles involved in the accident is not challenged in this appeal. Therefore, the only question which arise for consideration is whether the claimant is entitled to any enhanced compensation. M.A.C.A No.942 of 2007 3 6. The claimant sustained side swipe injury on the right elbow joint-with grade IV compound fracture upper 1/3rd of Ulna, Fracture dislocation right elbow. Ext.A3 is the wound certificate issued from the Fathima Matha Mission Hospital, Kalpetta. Ext.A5 is the disability certificate issued by a Doctor of Medical College Hospital,Kozhikode which shows that he has 20% disability . Ext.A6 series are the prescriptions and Ext.A9 is the discharge card issued from the Medical College Hospital, Kozhikode. The claimant was a headload worker in State Warehouse, Sulthan Bathery and was getting a daily wage of Rs.400/- per day as revealed from Ext.A8 certificate issued by the Assistant Manager, State Ware House, Sulthan Bathery. The Tribunal awarded compensation as follows: Loss of earning - Rs.1,330/- Transport to hospital - 1,500 Extra nourishment - 600 Damage to clothing and articles - 250 Bystander's expenses - 760 Medical expenses - 6,800 Pain and suffering - 6,000 Disability caused - 51,408 ----------------- Total 68,648 ======= M.A.C.A No.942 of 2007 4 7. The counsel for the appellant/claimant mainly disputed the compensation awarded for the disability caused. The Tribunal took his monthly income as Rs.2,100/- and fixed his permanent disability as 12% as seen from Ext.C1 certificate issued from the District Medical Board, Wayanad and adopted a multiplier of 17 as the claimant was aged 35 at the time of the accident. Though Ext.A8 wage certificate is not proved, we feel that the income of the claimant can be easily estimated at Rs.100/- per day i.e. Rs.3000/- per month. The multiplier adopted and as well as the percentage of disability shown in Ext.C1 is not seriously challenged in this appeal. Thus calculated for the disability caused, the claimant is entitled to compensation of Rs.73,440/- (12% of 3000 x 12 x 17). This on this count, the claimant is entitled to additional compensation of Rs.22,032/-. 8. Learned counsel for the appellant pointed out that no compensation has been awarded for the loss of amenities and enjoyment of life. Having regard to the nature of the injury sustained by the claimant, we feel that compensation of Rs.10,000/- would be reasonable on this count. M.A.C.A No.942 of 2007 5 9. Towards the loss of earning, the Tribunal awarded Rs.1330/-, that is, income of 19 days during which he was hospitalised. We have fixed his monthly income as Rs.3,000/- per month. The nature of the injury sustained by the claimant shows that he must have been disabled for three months for which he is entitled to compensation of Rs.9000/-. Thus on this count, he is entitled to an additional compensation of Rs.7670/-. 10. Rs.6000/- was awarded by the Tribunal for the pain and suffering endured. Taking into consideration the fact that he has sustained fracture and dislocation of right elbow, we feel that compensation of Rs.15,000/- would be reasonable on this court. Thus he is entitled to additional compensation of Rs.9000/- on this court. The compensation awarded under other heads is not questioned before us. Thus the claimant/appellant is entitled to an additional compensation of Rs.48,702/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation and proportionate costs. Fifth respondent, the insurer of both the vehicles shall deposit the amount within two months from the date of receipt of a copy of this judgment. The Tribunal awarded M.A.C.A No.942 of 2007 6 interest at the rate 6% per annum which appears to be very low. For the compensation already awarded, the claimant is entitled to interest at the rate of 9% per annum from the date of petition till realisation. 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 ma M.A.C.A No.942 of 2007 7 M.A.C.A No.942 of 2007 8