IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 30TH JUNE 2010/9TH ASHADHA 1932 MACA.No. 931 of 2007() ---------------------- OPMV.2464/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER IN O.P(MV) 2464/99 ----------------------------------------------------- MR.PAILY KUNJU, AGED 46, S/O.ABRAHAM, PATTASSERIL VEEDU, THIRUVANIYOOR, AND NOW RESIDING AT PATTASSERIL HOUSE, THALACODU KARA(VIA), MULANTHURUTHY. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENTS/RESPONDENTS IN O.P(MV) NO.2464/99 ------------------------------------------------ 1. SABU, THOTTAPADAN VEEDU, ALLAPRA KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK. 2. LEENA SUBASH, ESCOTEL, MERCY ESTATE, 33/124B, SOUMYA NAGAR, ALINCHUVADU, PALARIVATTOM, ERNAKULAM. 3. UNITED INDIA INSURANCE CO.LTD., M.G.ROAD, COCHIN. 4. NATIONAL INSURANCE CO.LTD., M.G.ROAD, COCHIN. R3 BY ADV. SRI.RAJESH THOMAS R4 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 931 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 30th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.2464 of 1999 of the Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated October 12, 2006 awarding a compensation of Rs.1,13,350/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 38 at the time of the accident and used to earn Rs.2,000/- per month as a Mason. On August 3, 1999 the claimant was riding his scooter along Muvattupuzha – Ernakulam road. When he reached at Varikoli at about 5.15 p.m.. a Maruthi car, driven by the first respondent, came at a high speed and dashed against the scooter. The claimant sustained serious injuries. According to the claimant, the MACA 931/2007 2 accident occurred due to the negligence of the first respondent, driver of the offending car. The first respondent as the driver, the second respondent as the owner and third respondent as the insurer of the offending car are jointly and severely liable to pay the compensation to the claimant. Fourth respondent is the insurer of the scooter of the claimant. The claimant claimed compensation of Rs.5 lakhs. 3. Respondents 1 and 2, driver and owner of the car, remained absent and were set ex parte by the Tribunal. The fourth respondent, insurer of the scooter also remained absent. The third respondent, insurer of the offending car, filed a written statement, admitting the policy and further contended that there was also negligence on the part of the claimant. 4. Exts. A1 to A20 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence on the part of the first respondent, driver of the car, and awarded a MACA 931/2007 3 compensation of Rs.1,13,850/- with interest at the rate of 7.5% p.a. from the date of petition till realization. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant and learned counsel for respondents 3 and 4, Insurance Companies. 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, driver of the offending car, 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 claimant sustained abrasion on left shin, right forearm, haematoma below occipital region and had painful movement of neck, as revealed from Ext.A2 wound certificate issued from the Medical Mission Hospital, Kolenchery. In the scan report C4-5 and C5-6 central disc bulge with thecal indentation as well as mild posterior angulation with MACA 931/2007 4 osteophytes at C6-7 was detected. He underwent treatment as an inpatient for 60 days. Ext.A19 photographs showed the physical condition of the claimant. Ext.A18 medical certificate showed that the claimant has permanent disability of 22%. It is certified therein that the claimant has weakness of abduction (Gr.IV) of shoulders, fine tremor of both hands, paraspinal muscle spasm of cervico thorasic region. 8. The Tribunal awarded a total compensation of Rs.1,13,850/-. Break up of the compensation awarded is as under:- Transportation, hospitalization : Rs. 7,000/- Extra-nourishment, attendant Expenses and damage to clothing. Medical expenses : Rs. 49,350/- Loss of earning : Rs. 7,500/- Pain and suffering : Rs. 25,000/- Loss of amenities, comforts : Rs. 25,000/- and enjoyment in life consequent on disability. ------------------ Total : Rs.1,13,850/- ======= 9. The learned counsel for the appellant pointed out MACA 931/2007 5 that no separate compensation was awarded for disability caused. 10. The Tribunal did not award any compensation for the disability caused. Ext.A18 certificate of disability showed that the claimant has suffered some disability. Therefore, we are of the view that for the disability caused, claimant is entitled to compensation. Taking into consideration the nature of the disability described in Ext.A18, we feel that disability suffered by the claimant can reasonably be fixed at 15%. The Tribunal took annual income of the claimant as Rs.15,000/-. As the claimant was a Mason, aged 38, we feel that his monthly income can reasonably be fixed at Rs.2,000/-. Multiplier of 16 would be appropriate in the present case. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.57,600/-. 11. The Tribunal awarded Rs.7,500/- for loss of earnings i.e., for six months @ Rs.1,250/- per month. As we have found that his monthly income can be fixed at Rs.2,000/-, he is entitled to a compensation of Rs.12,000/- for the loss of MACA 931/2007 6 earnings. Thus, the claimant is entitled to an additional compensation Rs.4,500/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. In the result, the claimant is entitled to an additional compensation of Rs.62,100/-. He is entitled to interest @ 7.5% from the date of petition till realization. The third respondent being the insurer of the offending car, shall deposit the amount 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