IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 MACA.No. 344 of 2006(A) ----------------------- OPMV.2/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER IN OPP,MV. --------------------------------------------- MATHEW GEORGE, S/O.GEORGE, AGED 28 YEARS, MANGALATHIL HOUSE, P.O.EDAPPUZHA, KARIKOTTAGIRI, KANNUR DISTRICT. BY ADV. SRI.H.BADARUDDIN SRI.C.A.JOSEPH RESPONDENT(S): RESPONDENTS IN OP.MV. ------------------------------------ 1. NALOLIKKAL SIBI @ JOSEPH, S/O.JOSEPH, VALIYAPARAMBUKARI P.O.KOONAMTHODU, IRITTY, KANNUR DISTRICT. 2. M.G.BINDU, MUDAPLAKKAL HOUSE, P.O.KANICHAR,KANNUR DISTRICT. 3. ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, KANNUR, P.O.KANNUR. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.344 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.2/2000 of Motor Accidents Claims Tribunal, Thalassery challenges the judgment and award of the Tribunal dated August 5, 2005 awarding a compensation of Rs. 77,750/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was an agriculturist aged 28 earning Rs. 4,000/- per month, according to him. On April 21, 1999 at about 9.30 p.m., the claimant was travelling in an auto rickshaw bearing Reg.No.KL13/D 3488. When he reached at a place called Marottichodu, due to the rash and negligent driving of the auto rickshaw by first respondent, it over turned on the road. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending auto rickshaw by first respondent. First respondent as MACA.No.344/2006 2 the driver, second respondent as the owner and third respondent as the insurer of the offending auto rickshaw are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 3 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending auto rickshaw remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending auto rickshaw filed a written statement admitting the policy. 4. Claimant was examined as PW1 and Exts.A1 to A7 series were marked on the side of the claimant before the Tribunal. No evidence was adduced 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 auto rickshaw by first respondent and awarded a compensation of Rs.77,750/- with interest @ 9% per annum and cost. 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.344/2006 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 first 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 claimant sustained the following injuries as revealed from Ext.A3, the copy of the wound certificate. : 1. Compound fracture and dislocation of left ankle. 2. Contused and lacerated wound 3 x 1 cm. bone deep on the medial aspect of right leg. 3. Contused abrasion of 3 cm. x 1 cm. left side of forehead above the eye braw. 4. Lacerated abrasion 2 cm. x 1 cm. on the right shoulder. 5. Abrasion of 1 ½ cm. long on the lateral aspect of right thigh. 8. Ext.A4 series are the two discharge cards issued from Kasturba Medical College Hospital, Manipal which shows that claimant has suffered fracture /dislocation of left ankle. 9. The Tribunal awarded a total compensation of Rs.77,750/-. The break up of the compensation awarded is as under : MACA.No.344/2006 4 Loss of earning - Rs. 6,000/- Medical expense including bills - Rs.29,600/- Transportation expense including ambulance bill - Rs. 6,000/- Bystanders expense - Rs. 2,000/- Extra nourishment - Rs. 1,500/- Loss of earning capacity - Rs. 32,640/- ( 2000 x 12 x 17 x 8%) ----------------- Total - Rs.77,740/- Rounded off to - Rs.77,750/- ========= 10. Counsel for the appellant sought enhancement of compensation for the disability caused. Ext.A5, the disability certificate issued by Dr.Bhaskaranand Kumar, Kasturba Medical College, Manipal shows that the claimant has the following disabilities : 1. Post traumatic ankylosis of left ankle joint with no planter fixation of dorsiflexion movements. 2. Post traumatic osteoarthrosis of left ankle joint with 10 degree valgus deformity. 3. Shortening of left lower limb - 1 cm. 11. His percentage of disability was assessed at 30%. The MACA.No.344/2006 5 Tribunal took the monthly income of the claimant as Rs.2,000/- and took the percentage of disability at 8% and adopted a multiplier of 17 and awarded Rs. 32,640/- for the disability caused. Taking into consideration the disabilities mentioned in Ext.A5, we feel that the percentage of disability suffered by the claimant can be fixed at 12%. Claimant as PW1 also testified that he is an agriculturist . Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2,500/-. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 61,200/- ( 12 % x 2500 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.28,560/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 28,560/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall MACA.No.344/2006 6 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.344/2006 7