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. 1435 of 2007 ----------------------- AGAINST THE ORDER DATED 04/12/2006 IN OPMV. 721 /2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER ---------------------------------- DR.JAYAKRISHNAN C.K., S/O P.NARAYANAN NAMBIAR, RESIDING AT C.K.HOUSE, TELLICHERRY-1 BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.JIBU P THOMAS RESPONDENT(S): RESPONDENTS -------------------------- 1. DR.K.SUDEEP, S/O K.NARAYANAN, RESIDING AT PALAKUNNU, P.O.KARIVELLUR, PAYYANNUR. 2. RAJEEVAN K.V., S/O BHASKARAN, C/O DR. K.SUDEEP, RESIDING AT PALAKUNNU, P.O.KARIVELLUR, PAYYANNUR. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, KANNUR. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL 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.1435 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - 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.721/2000 of Motor Accidents Claims Tribunal, Thalassery challenges the judgment and award of the Tribunal dated December 4, 2006 awarding a compensation of Rs. 3,40,350/- 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 : On April 21, 1999, the claimant was driving the car bearing Reg.No.KL-13/D 8422 from Mysore to Coorg. When he reached at Bilikere Byepass Road in Mysore District at about 12.15 p.m., a jeep bearing Reg.No.KL-13/C 5292 came at a high speed and dashed against the car of the claimant. The claimant sustained serious injuries. The claimant in O.P.(MV)No.720/2000 who is his wife also sustained injuries. According to the claimant, accident occurred due to the rash MACA.No.1435/2007 2 and negligent driving of the offending jeep by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 9 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending jeep filed a joint written statement admitting the accident, but contending that the accident occurred due to the negligence of the claimant. The third respondent the insurer of the offending bus filed a written statement admitting the policy. 4. This O.P. was jointly tried along with O.P.(MV) No.720/2000 filed by the wife of the claimant. Pws 1 to 3 were examined and Exts.A1 to A30 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 jeep by first respondent and awarded a compensation of Rs. 3,40,350/-. The claimant has now come up in appeal challenging the quantum of MACA.No.1435/2007 3 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 ? 7. The claimant sustained the following injuries as revealed from Ext.A15, the copy of the wound certificate issued from Basappa Memorial Hospital, Mysore. 1. Pain and tenderness over the right hip joint, all the movements of joint restricted. 2. X ray of pelvis showed posterior dislocation of head of right femur. 3. Fracture of right acetabullam. Subsequently he was admitted in Mother Hospital, Thrissur MACA.No.1435/2007 4 wherein fracture of 8th rib left side and fracture to coccyx were detected. Ext.A5 is the disability certificate issued by Orthopaedic Surgeon, Mother Hospital, Thrissur. Ext.X1, the certificate of disability issued by the Medical Board shows that he has a permanent disability of 10.67% on the ground of limitation of flexion and internal rotation of right hip joint. 8. The Tribunal awarded a total compensation of Rs.3,40,350/-. The break up of the compensation awarded is as under : Loss of earning - Rs. 30,000/- Transportation expenses - Rs. 4,000/- Medical expenses - Rs. 42,922/- Bystanders expenses - Rs. 6,450/- Extra nourishment - Rs. 1,500/- Pain and suffering - Rs. 25,000/- Loss of earning capacity - Rs. 2,30,472/- ----------------- Total - Rs. 3,40,344/- Rounded off to - Rs. 3,40,350/- ============ 9. The counsel for the claimant sought enhancement of compensation for the disability caused. The Tribunal took the monthly MACA.No.1435/2007 5 income of the claimant as Rs. 10,000/- and adopted a multiplier of 18 and accepted the disability as shown in Ext.X1 and awarded a compensation of Rs. 2,30,472/- for the disability caused. The claimant is a Medical Practitioner and was employed in St.James Hospital, Chalakudy at the time of the accident. Ext.A8, the salary certificate shows that he was getting a monthly salary of Rs. 18,000/-. Ext.A13 shows that he is MCH Orth. from the University of Dundee. In addition to that he might have been getting income from his private practice. Taking into consideration all these aspects, we feel that his monthly income can be reasonably fixed at Rs. 12,000/-. The multiplier adopted by the Tribunal as 18 and the percentage of disability are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 2,76,566/- ( 10.67 % x 12,000 x 12 x 18). Thus on this count, the claimant is entitled to an additional compensation of Rs. 46,094/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 10. In the result, the claimant is entitled to an additional MACA.No.1435/2007 6 compensation of Rs.46,094/-. 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.1435/2007 7