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 7TH JUNE 2011 / 17TH JYAISHTA 1933 MACA.No. 1751 of 2005() ----------------------- OPMV.164/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/APPLICANT --------------------------------- FRANCO, S/O.JELESTINE, VATTAPANAVILAKOM, VALLAVILA P.O., KANYAKUMARI DISTRICT, TAMIL NADU. BY ADV. SRI.L.MOHANAN RESPONDENTS/ RESPONDENTS -------------------------- 1. DR.SURESH JACOB, "JACOBYN", KEEZHPAMMAM, MARTHANDAM P.O., KANYAKUMARI DISTRICT. 2. HEMIN SPENCER, "SPENCER", PANDIMAMMOODU, CHERUVARAKONAM , PARASSALA P.O., THIRUVANANTHAPURAM. 3. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., THIRUVANANTHAPURAM. 4. K.MOHAMMED NAGOORKANI, MYDEEN, 123 B, MOUNT ROAD STREET, THENKASI, TAMIL NADU. ADV. SMT.D.GEETHA FOR R3 SRI.M.R.SUDHEENDRAN FOR R1 & R2 SRI.SURAJ.S FOR R1 & R2 SRI.M.R.HARIRAJ FOR R1 & R2 SMT.K.SHERIN MOHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1751 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.164/2002 on the file of Motor Accidents Claims Tribunal, Neyyattinkara. In this appeal he challenges the judgment and award of the Tribunal dated December 22,2004 awarding a compensation of Rs.1,15,450/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on December 17, 2001 at about 1 a.m.: Type III B compound comminuted fracture both bones ( R) leg with bone lose with osteo myalgia, wound debridgment done, external fixator applied. There is segmental loss of tibia. 2. The accident happened while the claimant was driving the goods auto bearing Reg.No.TN-72-U-3988 from Kuzhithira to Kaliakkavila along Nagercoil - Thiruvananthapurm National Highway. When he reached near Thiruthuvapuram, petrol pump, the MACA.No.1751/05 2 autorickshaw dashed against a car bearing Reg.No.TN-74-Y-695 driven by the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 7,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending car filed written statements admitting the accident, but denied the liability. The third respondent, the insurer of the offending car filed a written statement admitting the policy. 4. Exts.A1 to A14 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending car by second respondent and awarded a compensation of Rs. 1,15,450/- with interest @ 9% 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. Heard the counsel for the appellant/claimant and the MACA.No.1751/05 3 counsel for the 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 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 Tribunal awarded a total compensation of Rs.1,15,450/-. The break up of the compensation amount awarded is as under: Pain and suffering - Rs. 20,000/- Loss of earnings - Rs. 12,000/- Treatment expenses - Rs. 10,000/- Transport expenses - Rs. 2,000/- Damage to clothing - Rs. 250/- Disability - Rs. 61,200/- Loss of amenities - Rs. 10,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/- and the percentage of disability as 15% and adopted a multiplier of 17 and awarded Rs. 61,200/- for the disability caused. MACA.No.1751/05 4 According to the claimant, he was a coolie aged 24 earning Rs.5,000/- per month. Therefore, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. As regards the percentage of disability, Ext.A10 certificate of disability issued by the Medical Board attached to the Medical College Hospital, Thiruvananthapuram shows that he has a permanent disability of 35%. The claimant has the following disabilities : Partial ankylosis ( R) knee, with gross deformity ( R) leg with chronic osteomylitis with IDK ( R) leg following RTA. 10. Taking into consideration the above aspect, we feel that his percentage of disability can be assessed at 25%. The multiplier of 17 adopted by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.1,53,000/- (3000 x 12x 17x 25%) Thus on this count, the claimant is entitled to an additional compensation of Rs.91,800/-. 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 an additional compensation of Rs. 91,800/-. He is entitled to interest @ 9% per MACA.No.1751/05 5 annum from the date of petition till realisation and proportionate cost. The third 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. MACA.No.1751/05 6