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 22ND MARCH 2010 / 1ST CHAITHRA 1932 MACA.No. 4 of 2007(A) -------------------------------- [O.P(MV).NO.858/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA] .................... APPELLANT/CLAIMANT IN THE O.P: ---------------------------------------------------- REGI, S/O.KURIAN, RESIDING AT PULICKAL HOUSE, ANAKULAM P.O., MANKULAM, ADIMALI VIA, IDUKKI DISTRICT. BY ADV. SRI.P.V.GEORGE(PUTHIYIDOM). RESPONDENTS/RESPONDENTS 1 TO 3 IN O.P: ------------------------------------------------------------------- 1. BIJU JOSE, S/O.JOSE, NADUVATHUKUNNEL HOUSE, MANKULAM P.O., ADIMALI VIA., IDUKKI DISTRICT. 2. V.T THOMAS, VELUTHEDATHPARAMBIL HOUSE, ADIMALI. 3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, P.B NO.50, ELENGICAL MATHEW MEMMORIAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM. R1 BY ADVS. SRI.V.A.MUHAMMED, SRI.M.SAJJAD, R3 BY ADV. SRI.M.JACOB MURICKAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 4 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 22nd day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.858/1997 of Motor Accidents Claims Tribunal, Thodupuzha challenges the judgment and award of the Tribunal dated June 29, 2006 awarding a compensation of Rs. 74,100/- 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 :- The claimant was a rubber tapper, aged 74 and was earning Rs. 4,000/- per month, according to him. On September 19, 1997, he was travelling in a jeep bearing Reg.No.KL.6/1258 from Anakulam to Adimaly. When he reached at Varipara near Mankulam, due to the rash and negligent driving of the jeep by first respondent, it overturned. The claimant sustained serious injuries. MACA 4/2007 2 According to the claimant, accident occurred due to the rash 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. 3 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending jeep, remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending bus filed a written statement admitting the policy and further contending that vehicle was insured as a private car, but it was registered as a contract carriage and that therefore, third respondent is not liable to indemnify the second respondent, the owner of the jeep. 4. Claimant was examined as PW1 and Exts.A1 to A19 were marked on the side of the claimant before the Tribunal. On the side of the third respondent, Insurance Company, Assistant Administrative Officer was examined as MACA 4/2007 3 RW1 and Exts.B1 to B4 were marked. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 74,100/- with interest @ 6% per annum from the date of petition till realization. It was also found that third respondent, Insurance Company, is entitled to recover the amount from the second respondent, the owner of the vehicle, as there was violation of the conditions of the policy. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The findings of the Tribunal that the accident occurred due to the negligence on the part of the first respondent and that the Insurance Company is entitled to recover the amount from the owner of the offending vehicle, second respondent, are not disputed 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 MACA 4/2007 4 revealed from Ext.A8, copy of the wound certificate. 1) Blunt trauma in abdomen. 2) Tenderness over spine (Lumbar) 3) Subconjentival haemorrhage of left eye. Ext.A2, the disability certificate issued from Malankara Medical Mission Hospital, Kolencherry shows that exploratory laparotomy for repair of diaphragm was done on 19-09-1997. Intercostal tube drain was put on 5th left IC space. D12 to L2 staffe plating and screw fixation was done. Under anesthesia and placement of pedicle screws was done. Match stick graft taken from the right iliac crest and then placed over the lamina and over the transvere process. He was progressively mobilised after 2 weeks and was discharged in an improved condition in which he could walk independently. 8. The Tribunal awarded a total compensation of Rs. 74,100/-. The break up of the compensation awarded is as under : Loss of earning - Rs. 4,500/- MACA 4/2007 5 Transportation expenses - Rs. 1,500/- Extra nourishment - Rs. 1,000/- Bye-stander expenses - Rs. 2,000/- Treatment expenses - Rs. 37,096/- Pain and suffering - Rs. 18,000/- Discomforts, - Rs. 10,000/- inconveniences, loss of amenities and enjoyment of life. ---------------------- Total - Rs. 74,096/- Rounded off to - Rs. 74,100/- =========== 9. Counsel for the claimant argued that the monthly income of the claimant taken is only Rs. 1500/- by the Tribunal, which is too low and that as the claimant was a rubber tapper, his monthly income should have been taken as Rs. 3,000/- per month. There is force in the above contention. Taking into consideration the fact that claimant was a rubber tapper as testified by him, we feel that his monthly income can reasonably be fixed at Rs. 2,500/-. Considering the the nature of the injuries sustained by him, we feel that he must have been disabled for four months, for which he is entitled to Rs. 10,000/- towards loss of earnings. The Tribunal awarded only Rs. 4,500/- for loss of MACA 4/2007 6 earnings. Therefore, on this count, the claimant is entitled to an additional compensation of Rs. 5,500/-. 10. It is pointed out by the counsel for the appellant/claimant that no compensation was awarded for the disability caused, as it is revealed from Exts.A8 treatment certificate issued from the hospital that claimant has suffered some severe disability. The claimant had not produced any certificate of disability before the Tribunal. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs. 40,000/- would be reasonable for the disability caused. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. Thus, the claimant/appellant is entitled to an additional compensation of Rs. 45,500/-. He is entitled to interest @ 9% per annum from the date of petition till realization . For the compensation already awarded also, MACA 4/2007 7 the claimant is entitled to interest at the rate of 9% 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 third respondent, Insurance Company, is entitled to recover the amount from the owner, the second respondent. 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. mn.