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 14TH OCTOBER 2010 / 22ND ASWINA 1932 MACA.No. 1606 of 2004() ----------------------- OP.MV.404/1999 of MACT,TRIVANDRUM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- NIZAR S/O. SAINUDEEN KUNJU, IYSHA BHAVAN, NEAR PUTHENPALAM, ANAD P.O., ANAD VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU SMT.VIVEEJA RAVEENDRAN RESPONDENT(S): RESPONDENTS -------------------------- 1. P.RAVEENDRAN NAIR, SABARI, T.C.42/6278, MANACAUD, THIRUVANANTHAPURAM. 2. SUNIL KUMAR S/O. SASANKAN, AJITH NIVAS, PUTHUVAL MANACAUD NEAR OLATHUKAVU TEMPLE, PONDUKADAVU WARD, ATTIPRA VILLAGE. 3. THE DIVISIONAL MANAGER, M/S. UNITED INDIA INSURANCE CO.LTD., DIVISIOAL OFFICE NO.II, MALANKARA BUILDING 2, N.D.G. PALAYAM, THIRUVANANTHAPURAM 695 034. 4. PEETHAMBARAN S/O. DAMODHARAN, A.P.IX.436, BHARGAVI NIVAS, KULATHOOR, THIRUVANANTHAPURAM. ADV. SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1606 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.404/1999 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. He sustained the following injuries in a motor accident that occurred on August 25, 1998 at about 1.45 p.m. : Fracture on the right femur, fracture on the right clavicle, fracture on upper third of the right fibula and a fracture on the right tibial spike on the subluxation of right knee. 2. The accident happened while the claimant was pillion riding on the motor cycle bearing Reg.No.KL.01/H 4631 from Pattom to P.M.G. and reached at Plamoodu junction, he was knocked down by an Omnibus bearing Reg.No.KL 01/F. 9145 driven by the second respondent. 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/-. MACA.No.1606/2004 2 3. Respondents 1 and 2, the owner and the driver of the offending Omnibus remained absent before the Tribunal. The fourth respondent, the present owner of the offending Omnibus, who was subsequently impleaded as additional fourth respondent in the O.P. also remained absent. The third respondent, the insurer of the offending Omnibus filed a written statement admitting the policy and further contended that the accident occurred due to the negligence of the rider of the motor cycle. 4. PW1 was examined and Exts.A1 to A12 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 Omnibus by second respondent and awarded a compensation of Rs. 68,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.1606/2004 3 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. 7. The break up of the compensation awarded is as under : Loss of earning - Rs. 9,000/- Medical expenses - Rs.11,500/- Transportation - Rs. 1,000/- Bystander expenses - Rs. 1,000/- Damage to clothing - Rs. 250/- Pain and suffering - Rs.15,000/- Disability - Rs.19,200/- Loss of amenities and inconvenience - Rs. 10,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as Rs.3,000/- and after his retirement as Rs. 2,000/- and took the MACA.No.1606/2004 4 percentage of disability as 10% and adopted a multiplier of 8 and awarded Rs. 19,200/- for the disability caused. The claimant was employed as a L.D. Clerk in District Supply Office, Thiruvananthapuram. He used to earn Rs. 5949/- as salary as evidenced by Ext.A12, his salary certificate, which is of the year 2003. The accident occurred on August 25, 1998. Therefore, the Tribunal is perfectly justified in assessing his monthly income as Rs.3,000/-. The percentage of disability of 10% as certified by the doctor in Ext.A9 and the multiplier adopted as 8 are not seriously challenged. The Tribunal awarded compensation for disability only after retirement which appears to be not proper. The disability caused to him will affect his activities in daily life. Therefore, he is entitled to compensation for the disability caused taking his monthly income as Rs.3,000/-. Thus calculated, for the disability caused, the claimant is entitled to a compensation of Rs. 28,800/- ( 10% x 3000 x 12 x 8). Thus on this count, the claimant is entitled to an additional compensation of Rs.9,600/-. 10. The Tribunal awarded Rs.10,000/- for loss of amenities MACA.No.1606/2004 5 and inconvenience caused to the claimant. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. 11. In the result, the claimant is entitled to an additional compensation of Rs. 19,600/-. 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 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.1606/2004 6