IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 MACA.No. 46 of 2007(A) ---------------------- OPMV.759/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- P.C.NASSAR, S/O.MOIDEEN, AGED 28 YEARS, CHELORAKANDY HOUSE, MADATHIL P.O., IRITTY. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): RESPONDENTS IN OP (MV) ------------------------------------- 1. PUTHENPURAYIL CHANDRABABU, S/O.KARUNAN, P.O.MADATHIL, IRITTY. 2. K.V.MOIDEEN, S/O.MUHAMMED, P.O. MADATHIL, IRITTY. 3. THE UNITED INDIA ISURANCE CO.LTD., THALASSERY. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 46 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of July, 2009 JUDGMENT Joseph, J. The appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. As the insurance is admitted by the third respondent, we are not issuing notice to respondents 1 and 2 and the appeal is being disposed of on consent. 2. Heard the learned counsel for the appellant and the learned counsel for the Insurance Company. 3. The appellant was working as a Cook. He produced Ext.A6 salary certificate to show that he was earning Rs.150/- per day. The Tribunal has awarded a compensation of Rs.2,59,790/-, the break up of the same is as follows: M.A.C.A.No. 46 of 2007 2 1. loss of earning Rs. 12,000.00 2. Transportation expense Rs. 15,000.00 3. Medical expense Rs.1,53,700.00 4. bystanders expense Rs. 18,450.00 5. Extra nourishment Rs. 3,000.00 6. Pain and sufferings Rs. 25,000.00 7. Loss of earning capacity ( 2000 x 12 x 17 x 8%) Rs. 32,640.00 ----------------- Total Rs.2,59,790.00 =========== 4. The learned counsel for the appellant took us through the award of the Tribunal, wherein the details of the hospitalisation of the appellant, the number of surgeries and injuries sustained by him are set out. The counsel pointed out that there were 14 surgeries. It is also pointed out that the appellant was hospitalised for 128 days. His left leg has been shortened by 3.5 cms. His disability was calculated at 27%. But he pointed out that the Tribunal has taken the disability at 8% for calculating the compensation. 5. The learned Standing Counsel for the Insurance Company supported the award. M.A.C.A.No. 46 of 2007 3 6. Of course, the learned counsel for the appellant would submit that the income taken, i.e. Rs.2,000/-, is too low. The accident took place in the end of 1999. Though a salary certificate was produced, it was not proved. We are not inclined to interfere with the income taken. 7. The Tribunal has given reasons for not taking the percentage at 27%. Having regard to the injuries sustained by the appellant, we feel that the Tribunal should have calculated the compensation taking the disability at 14%. We fix 14% as the disability without any further increase in the income. Hence the amount towards disability would come to Rs.57,120/- After deducting the amount already awarded, the appellant is entitled to Rs.24,480/- more. We feel that the appellant can be awarded an amount of Rs.5,000/- more towards pain and sufferings. 8. Having regard to the nature of injuries and the long period of hospitalisation, we feel that the appellant can be given a sum of Rs.10,000/- towards loss of amenities. More over, we award an M.A.C.A.No. 46 of 2007 4 amount of Rs.4,000/- towards loss of earnings, as it is the case of the appellant that the appellant was out of work on account of the injuries and hospitalisation. Thus, the appellant is entitled to a further sum of Rs.43,480/- which is rounded of to Rs.43,500/- 9. This appeal is accordingly allowed in part. The appellant is entitled to realise an amount of Rs.43,500/- more with interest at the rate of 7.5% from the date of the petition till the date of realisation from the third respondent. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm