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 16TH FEBRUARY 2010 / 27TH MAGHA 1931 MACA.No. 316 of 2007() ---------------------- OPMV.1324/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/CLAIMANT -------------------------------- SAJESH, AGED 23 YEARS, S/O.RAMACHANDRAN, KOTTILINGAL HOUSE, P.O.AVINISSERY, THRISSUR DISTRICT. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT(S): RESPONDENTS -------------------------- 1. SRI.N.K.SIMON, S/O.KUNJIPAVOO, NELLANGARA HOUSE, OLLUR P.O., THRISSUR DISTRICT. 2. M/S.ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, MAHESWARI BUILDING, M.G.ROAD, THRISSUR. ADV. SRI.P.K.SAJEEV FOR R1 SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2010 ALONG WITH MACA NO. 317 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. Nos.316 & 317 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2010 JUDGMENT Barkath Ali, J. Both these appeals arise out of a common award passed by the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV)No.1324/2001 and 1325/2001 dated 16/01/2006. In both these appeals, the claimants challenge the quantum of compensation awarded by the Tribunal for the loss caused to them on account of the injuries sustained in a motor accident. M.A.C.A.No.316/2007 is filed by the claimant in O.P.(MV) No.1324/2001 and M.A.C.A.No.317/2007 is filed by the claimant in O.P.(MV)No.1325/2001. 2. The facts in brief are these : On July 6, 2001 at about 10.00 a.m., claimant in O.P.(MV) No.1324/2001 was riding a motor cycle bearing Reg.No.KL8/Q 270 and the claimant in O.P.(MV)No.1325/2001 was pillion riding along a public road from north to south.. When they reached Kuriachira old post at Thrissur, a Maruthi Omni Van bearing Reg.No.KL 8/R 803 MACA.No.316 & 317 of 2006 Page numbers driven by the first respondent came at a high speed from the opposite side and dashed against the motor cycle of the claimants. The claimants sustained serious injuries. According to the claimants, accident occurred due to the rash and negligent driving of the Omni Van by the first respondent. Claimant in O.P(MV)No.1324/2001 who is the appellant in M.A.C.A.No.316/2007 claimed a compensation of Rs. 3,43,000/-. While the other claimant claimed a compensation of Rs. 3,18,000/-. According to the claimants, the first respondent owner cum driver of the offending Maruthi Van and second respondent, the insurer, are jointly and severally liable to pay the compensation. 3. First respondent remained absent and was set ex parte. Second respondent, Insurance company, filed written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the rider of the motor cycle. As both these claims arise out of the same accident and respondents are the same, the Tribunal jointly tried both these petitions and a common award was passed. Claimants were examined as PWs 1 and 2 and the doctor who examined the claimants was examined as PW3. Exts.A1 to A13 series MACA.No.316 & 317 of 2006 Page numbers were marked on the side of the claimants. On the side of the second respondent, the insurer, a copy of the policy Ext.D1 was marked. 4. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 50520/- in O.P.(MV)No.1324/2001 and Rs. 140210/- in O.P.(MV)No.1325/2001 with 7% interest from the date of petition till realisation and cost. Dis-satisfied with the quantum of compensation awarded, the claimants have now come up in appeals. 5. Heard learned counsel for the claimants and counsel appearing for the second respondent, the Insurer. Both these appeals are disposed of by a common judgment as both these appeals arise out of a common award. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent, the driver of the offending Maruthi Van is not challenged in these appeals. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 7. The claimant in O.P.(MV)No.1324/2001 was examined as MACA.No.316 & 317 of 2006 Page numbers PW1 before the Tribunal. He sustained the following injuries 1) Crushed lacerated wounds near Rt. Big toe and IV toe (2) Abrasion on Rt. forehead, nose, Lt. arm and Lt knee (3) Crushed lacerated wound 2 x 0.5 cm at Rt big toe and of underlying bone (4) Fracture Proximal Phalanx ( R ) big toe (5) Partial amputation ( R) little toe. 8. He was treated as an impatient in Aswani hospital for 17 days. As PW1 he has testified before the Tribunal that he is now unable to wear foot wear and there is difficulty in climbing steps. Ext.A4 is the wound certificate issued from the Aswini hospital, Thrissur. Ext.A6 is the discharge summary issued from the hospital. Ext.A12, the certificate of disability shows that he has a permanent disability of 7%. PW3, the doctor who was examined also testified to that effect. He was a fitter in KSE Ltd. and was earning a monthly income of Rs. 2550/- as revealed from Ext.A1, the salary certificate. MACA.No.316 & 317 of 2006 Page numbers 9. The Tribunal awarded the compensation as follows : Loss of earning -Rs.5,000/- Transport to hospital -Rs. 500/- Extra nourishment -Rs. 500/- Damages to clothing -Rs. 500/- Treatment Expenses -Rs. 9,200/- Expenses for bystander -Rs. 1,500/- Pain and suffering -Rs.10,000/- Disability -Rs.16,320/- Loss of amenities -Rs. 7,000/- --------------- Rs.50,520/- ======== 10. Counsel for the appellant disputed only the quantum of compensation awarded for the disability caused. The Tribunal took the monthly income of the appellant/PW1 as Rs.2,000/- as Ext.P9, the salary certificate, was not proved by examining the person who issued the same. We are also of the view that the Tribunal is perfectly justified in fixing his monthly income as Rs. 2000/-. But the percentage of disability was taken by the Tribunal as 4% only. Ext.A12 is the certificate of disability issued by PW3, the doctor who has also gave evidence to the effect that PW1 has a permanent disability of 7%. Therefore, we feel that Ext.A12 can be accepted and the disability of the appellant can be fixed at 7%. The Tribunal took the multiplier as MACA.No.316 & 317 of 2006 Page numbers 17 taking into account the age of the claimant as 23, which is not seriously disputed. Thus calculated for the disability caused, the appellant is entitled to a compensation of Rs. 28,560/- ( 7% x 2000 x 12 x 17). The compensation awarded under other heads has not been questioned. Therefore we are not disturbing the same. 11. Thus the appellant in M.A.C.A.NO.316/2007 is entitled to an additional compensation of Rs. 12,240/- with interest @ 9% from the date of petition till realisation. The claimant is also entitled to proportionate costs. 12. As regards the appellant in M.A.C.A.No.317/2006 i.e. the claimant in O.P.(MV)No.1325/2001, he was examined as PW2 before the Tribunal and he sustained the following injuries : 1) Pain and Swelling on Rt.mid thigh (2) Abrasion on Rt.big toe (3) Fracture Femur ( R). 13. He is a goldsmith earning Rs. 3,500/- per month, according to PW2. Ext.A12, the certificate of disability shows that he has a disability of 12%. He was having irregularity and tenderness in the middle 3rd Rt femur and Rt.femur was malunited. He has also MACA.No.316 & 317 of 2006 Page numbers weakness of Rt. quadriceps muscles and lower limb was shortened by 2 cms. Therefore he was limbing. 14. The Tribunal awarded the compensation as follows : Loss of earning -Rs. 8,000/- Transportation -Rs. 500/- Extra nourishment -Rs. 500/- Damages to clothing -Rs. 500/- Expenses for treatment -Rs.38,150/- Expenses for bystander - Rs. 2,000/- Pain and suffering -Rs.12,000/- Disability -Rs.34,560/- Loss of amenities -Rs. 8,000/- ---------------- Rs.104210/- ========= 15. In this case also, the counsel for the appellant disputed only the quantum of compensation awarded by the Tribunal for the disability caused. As no certificate was produced to show that the claimant was a goldsmith and was earning Rs. 3,500/- per month, the Tribunal took the monthly income of PW2 as Rs. 2000/- and took his percentage of disability as 8% and awarded Rs. 34,560/- adopting a multiplier of 18. As PW2 was a goldsmith, we feel that the Tribunal is justified in taking his monthly income as Rs. 2000/-. But PW3, the doctor, has certified that he has suffered a permanent disability of 12%. MACA.No.316 & 317 of 2006 Page numbers We find no reason to suspect the evidence of PW3, the doctor. Therefore, accepting the evidence of PW3, the doctor , the permanent disability of PW2 is assessed as 12% as revealed from Ext.A12. The Tribunal adopted a multiplier of 18 having regard to the age of PW2. Thus calculated, PW2 is entitled to a compensation of Rs. 51840/- ( 12% x 2000 x 12 x 18). Regarding other aspects, the compensation awarded by the Tribunal appears to be reasonable and we are not disturbing the same. Thus PW2 is entitled to an additional compensation of Rs. 17280/-. The claimant is entitled to interest @ 9% from the date of petition till reaslisation and proportionate costs. In the result, the appellant/claimant in M.A.C.A.No.316/2007 is found entitled to an additional compensation of Rs. 12,240/- and the appellant/claimant in M.A.C.A.No.317/2007 is found entitled to an additional compensation of Rs. 17,280/-. They are entitled to interest at the rate of 9% per annum from the date of petition till realisation and proportionate cost. The third respondent, 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 MACA.No.316 & 317 of 2006 Page numbers impugned award of the Tribunal is modified to the extent mentioned above. Both the Appeals are disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.316 & 317 of 2006 Page numbers