IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 MACA.No. 1550 of 2004() ----------------------- OP.MV.1098/1998 of MACT,TRIVANDRUM .................... APPELLANT(S): APPELLANT/APPLICANT: ---------------------------------- BIBI GEORGE CHACKO ALIAS BIBI CHACKO S/O. K.N. CHACKO, RESIDING AT KYMOOTTIL HOUSE, SHEEVELI NAGAR, KAITHAMUKKU, THIRUVANANTHAPURAM-24. BY ADV. SRI.T.M.CHANDRAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. B. SULFIKAR, T.C.35/833, CHEELANTHIMUKKU, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. 2. RAJAN, S/O. JANARDHANAN, T.C.42/1157, NEAR PONNARA SCHOOL, PONNARA NAGAR, KAMALESWARAM WARD, THIRUVANANTHAPURAM. 3. THE NEW INDIA ASSURANCE COMPANY LTD., THIRUVANANTHAPURAM BRANCH, K.N. MATHEW BUILDING, GANDHARI AMMAN COIL ROAD, THIRUVANANTHAPURAM REPRESENTD BY ITS BRANCH MANAGER. ADV. SRI.KKM.SHERIF FOR R3 SRI.A.A.ZIYAD RAHMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1550 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1098/1998 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. He sustained the following injuries in a motor accident that occurred on August 16, 1995 at about 10.30 p.m. Fracture of right femur and tarse metatarsal dislocation ( left). 2. The accident happened while the claimant was driving the car bearing Reg.No.TSH 9696 along Kowdiar-Vellayambalam road and when he reached near Raj Bhavan, a mini lorry bearing Reg.No.KEV 5139 driven by the second respondent dashed against the car. 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. 3,00,000/-. 3. Respondents 1, 2, 3 are the owner, driver and insurer of the offending mini lorry. Respondents 1 and 2 remained absent before the Tribunal Respondent No.3, the insurer of the offending vehicle filed a written statement admitting the policy, but attributing negligence to the MACA..No.1550/04 2 driver of the car. 4. This O.P. was jointly tried along with other O.Ps. filed by the other injured persons and a common award was passed by the Tribunal. Pws 1 to 3 were examined and Exts.A1 to A33 were marked on the side of the claimants before the Tribunal. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent and awarded a compensation of Rs. 1,45,720/- 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 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. MACA..No.1550/04 3 7. The Tribunal awarded a compensation of Rs.1,45,720/-. The break up of the compensation awarded is as under : Loss of earning - Rs. 12,000/- Medical and incidental exp. - Rs. 65,000/- Transportation - Rs. 2,000/- Damage to clothing - Rs. 500/- Bystander expenses - Rs. 2,500/- Disability - Rs. 36,720/- Loss of amenities - Rs. 12,000/- Total - Rs. 1,30,720/- ========== 8. Counsel for the claimant sought enhancement of compensation for the disability caused, loss of amenities and enjoyment in life and for pain and suffering endured. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/-, took the percentage of disability as 9% and adopted a multiplier of 17 as he was aged 28 at the time of the accident and awarded Rs. 36,720/- for the disability caused. The claimant as PW2 testified that he is a business man and used to earn Rs.10,000/- per month. Ext.A8 is the certificate of registration of the wholesale and retail business of lubricant and spare parts with the Central Sales Tax Department. Ext.A9 is the copy of the shop inspection report MACA..No.1550/04 4 conducted by the Sales Tax Officer. Taking into consideration the above aspects, we feel the monthly income of the claimant can be reasonably fixed at Rs.3,000/-. As regards the percentage of disability, in Ext.A11 medical certificate, it is certified that he has suffered a permanent disability of 15%. Therefore, we feel that the percentage of disability can be reasonably fixed at 12%. The multiplier adopted by the Tribunal as 15 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 73,440/- ( 12% x 3000 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.36,720/-. 10. No compensation is seen awarded for the pain and suffering endured by the claimant. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 11. The Tribunal awarded Rs.12,000/- for loss of amenities and enjoyment in life. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. MACA..No.1550/04 5 12. There is another aspect in this case. The Tribunal awarded Rs. 12,000/- towards loss of income for 6 months @ Rs. 2,000/- per month. As we have fixed the monthly income of the deceased as Rs. 3,000/-, he is entitled to a compensation of Rs. 18,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 6,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. There is another aspect in this case. Tribunal awarded a total compensation of Rs. 1,45,720/-. But the total compensation comes to only Rs. 1,30,720/-. Therefore, the award of the Tribunal is accordingly corrected as Rs. 1,30,720/-. 14. In the result, the claimant is found entitled to an additional compensation of Rs. 60720/-. 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 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 MACA..No.1550/04 6 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.1550/04 7