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 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 MACA.No. 372 of 2007() ---------------------- OPMV.947/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SAJEEVAN, S/O.LATE PARAMESWARAN, KOLLETH HOUSE, S.VAZHAKULAM P.O., KUNNATHUNADU TALUK. BY ADV. SRI.K.VINOD CHANDRAN RESPONDENT(S): RESPONDENTS --------------- 1. SAJI, S/O.VARGHESE, MENACHERY HOUSE, KAVARAPPARAMBU, NAYATHODU P.O., ANGAMALY. 2. THE NEW INDIA ASSURANCE CO.LTD., PERINCHERY BUILDING, ROUND NORTH, THRISSUR-680 001. ADV. SRI.A.C.DEVY FOR R2 SRI.T.M.RAMAN KARTHA FOR R.1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.372 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.947/2002 on the file of Motor Accidents Claims Tribunal, Perumbavoor. He sustained the following injuries in a motor accident that occurred on September 25, 2006 at about 7.10 a.m. : Open fracture both bones right leg, fracture right patella. Patella was removed. 2. The accident happened while the claimant was riding his motor cycle bearing Reg.No.KL-8D-8364 from north to south along Little Flower Hospital T.B. Junction road and reached at Angamaly, he was knocked down by an autorickshaw bearing Reg.No.KL-7AE-9251 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 4,00,000/-. 3. First respondent, the owner-cum-driver of the offending MACA.No.372/2007 2 autorickshaw remained absent before the Tribunal. The second respondent, the insurer of the offending autorickshaw filed a written statement admitting the policy. 4. Pws 1 to 3 were examined and Exts.A1 to A12 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending autorickshaw by first respondent and awarded a compensation of Rs.1,60,560/- with interest @ 7% 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. 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 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. MACA.No.372/2007 3 7. The break up of the compensation awarded is as under : Loss of leave - Rs. 77,630/- Transport expenses - Rs. 2,000/- Extra nourishment - Rs. 3,000/- Attendance charges - Rs. 3,000/- Damage to clothings - Rs. 250/- Loss of amenities - Rs. 10,000/- Pain and suffering - Rs. 15,000/- Medical expenses - Rs. 34,320/- Disability - Rs. 15,360/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for the 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.2,000/- after retirement and took the percentage of disability as 8% and adopted a multiplier of 8 and awarded Rs. 15,360/- for the disability caused. Claimant was working as an Engineer in FACT, Eloor earning Rs. 17,138/- as salary which is proved by Ext.A8, his salary certificate. He has also testified as PW1 that he used to take private projects. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs. 5,000/- per month. The Tribunal took the percentage of disability as 8%. In Ext.A7, the certificate of disability, PW2, the doctor has certified that MACA.No.372/2007 4 he has a permanent disability of 20%. The claimant has now the following disabilities : “Unable to bend the right knee, unable to squat and climb stairs, pain and swelling right knee and ankle while walking and standing for some time.” 10. Taking into consideration the above aspect and the fact that the claimant is still in service, we feel that the percentage of disability assessed by the Tribunal appears reasonable. The Tribunal took the multiplier as 8 which appears to be not correct. The above disability will affect his daily activities. Therefore, we feel that a multiplier of 16 would be reasonable in this case. Thus calculated, for the disability caused, the claimant is entitled to a compensation of Rs. 76,800/- ( 8% x 5000 x 12 x 16). Thus on this count, the claimant is entitled to an additional compensation of Rs.61,440/-. 11. The Tribunal awarded Rs.15,000/- for the pain and suffering endured by the claimant. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 25,000/- would be reasonable on this count. 12. The Tribunal awarded Rs.10,000/- for loss of amenities MACA.No.372/2007 5 and enjoyment in life. Taking into account the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable 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. 13. In the result, the claimant is entitled to an additional compensation of Rs. 76,440/-. He is entitled to interest @ 7% 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.372/2007 6