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 1ST MARCH 2010 / 10TH PHALGUNA 1931 MACA.No. 256 of 2007() ---------------------- OPMV.446/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/PETITIONER: ------------------------------ MUHAMMED ISMAIL, S/O.MUHAMMED HANEEFA, AL HASIM MANZIL, KILLI, KOLLODE P.O., MALAYINKAL (VIA), THIRUVANANTHAPURAM. BY ADV. SRI.B.JAYASURYA RESPONDENTS/RESPONDENTS: ---------------------------------- 1. M. KRISHNANKUTTY, KALPANA BHAVAN, SANTHUMMOOLA, MALAYINKIL, THIRUVANANTHAPURAM. 2. K. ASOKAN, KAMUKINKUZHI VEEDU, ANTHIYOORKONAM, MALAYINKIL VIA, THIRUVANANTHAPURAM. 3. M/S.UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, CWC BUILDING, L.M.S.COMPOUND, PALAYAM, THIRUVANANTHAPURAM. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. ------------------------- M.A.C.A No.256 of 2007 -------------------------- Dated this the 1st March, 2010 J U D G M E N T Barkath Ali,J. Challenge in this appeal by the claimant under Section 173 of the Motor Vehicles Act is to the judgment and award of the Motor Accidents Claims Tribunal, Neyyattinkara in O.P. (MV) No.446 of 1999 dated January 17, 2001 awarding a compensation of Rs.99,400/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 50 and used to earn Rs.5,000/- from his business, according to him. On January 15, 1999 at about 11 p.m. while he was walking along the Kattakada-Malayinkil road, he was knocked down from behind by the motor cycle bearing Reg. No.KRT 8151 ridden by the 2nd respondent. The claimant sustained serious injuries. According to the claimant, the accident occurred due to rash and negligent driving of the M.A.C.A No.256 of 2007 2 offending motor cycle by the 2nd respondent. First respondent as the owner, 2nd respondent as the rider and 3rd respondent, respondent insurer of the motor cycle are jointly and severally liable to pay compensation to the claimant. The claimant has claimed a compensation of Rs.5 lakhs. 3. Respondents 1 and 2 remained absent and were set ex parte by the Tribunal. Third respondent insurer of the offending vehicle filed a written statement admitting the policy. 4. The claimant was examined as PW1 and Exts.A1 to A9 were marked on his side. No evidence was adduced by the contesting 3rd respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to negligence on the part of the 2nd respondent and awarded a compensation of Rs.99,400/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant and the counsel for the Insurance Company. M.A.C.A No.256 of 2007 3 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to negligence on the part of the 2nd respondent is not challenged in this appeal. Therefore, the only question which arise for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries. i. Public symphysis diastasia along with involvement of sacroiliac joint ii. Fracture both bones (Rt) forearm iii. Multiple abrasions over skull and (Lt) heel iv. Fracture of pelvis bone 8. Ext.A3 is the copy of the wound certificate issued from the P.N.M. Hospital, Kattakada. Ext.A6 is the discharge certificate issued from the Medical College Hospital, Thiruvananthapuram and Ext.A7 is the scan report. The claimant produced a copy of Ext.A6 to A8 for our perusal. It is seen from A8 that the claimant has the following disabilities. i. Persistent displacement of symphysis pubis of 2" ii. Partial ankylosis of (Rt) wrist joint with flexion extension movement limited to an arc from 20 dorsiflexion to 15 palmar flexion iii. Tenderness over Bilateral sacroiliac joint iv. Loss of sexual function. M.A.C.A No.256 of 2007 4 The percentage of disability is assessed at 15%. 9. The Tribunal awarded a total compensation of Rs.99,400/-. The break up of the award amount is as under: Pain and suffering - Rs.25,000/- Loss of earning (for 3 months @ Rs.2,500/- per month) - 7,500 Medical expenses - 25,000 Transport to hospital - 3,000 Damage to clothing - 500 Disability caused - 26,400 Loss of amenities and enjoyment of life - 12,000 ----------------- Total 99,400 ======= 10. The counsel for the appellant mainly sought enhancement on the compensation awarded for the disability caused. The Tribunal took his disability at 8% and took his monthly income as Rs.2,500/- and adopted a multiplier of 11. Taking into consideration the fact that the claimant was conducting a business, we feel that his monthly income can be reasonable estimated at Rs.3,000/- M.A.C.A No.256 of 2007 5 per month. Taking into account the nature of the disabilities noted in Ext.A8, we feel that the percentage of disability as 15% mentioned in Ext.A8 can be accepted. The multiplier adopted by the Tribunal as 11 as the claimant was aged 52 at the time of the accident is not seriously disputed. Thus calculated for the disability caused, the claimant is entitled to compensation of Rs.59,400/- (15% of 3000 x 12 x 11). Thus on this count, the claimant is entitled to an enhanced compensation of Rs.33,000/-. 11. Towards loss of earning, Rs.7,500/- was awarded by the Tribunal for three months at the rate of Rs.2,500/- per month. As we have fixed the monthly income of the claimant as Rs.3,000/-, she is entitled to a compensation of Rs.9,000/- towards loss of earning. Thus, on this count he is entitled to additional compensation of Rs.1,500/-. 12. For the loss of amenities and enjoyment of life, Rs.12,000/- was awarded by the Tribunal. Taking into account the nature of the injuries sustained by the claimant, we feel that compensation of Rs.20,000/- would M.A.C.A No.256 of 2007 6 be reasonable on this count. Thus on this count he is entitled to additional compensation of Rs.8,000/-. Regarding the compensation awarded under other heads is not questioned before us. Therefore, we are not disturbing the same. 13. In the result, the claimant is found entitled to enhanced compensation of Rs.42,500/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation. It is seen from the award that 12% interest was awarded by the Tribunal, which appears to be excessive. The claimant will be entitled to interest at the rate of 9% per annum for the compensation already awarded from the date of petition till realisation. The appeal is disposed of, as found above. A.K.BASHEER,JUDGE P.Q. BARKATH ALI, JUDGE ma M.A.C.A No.256 of 2007 7 M.A.C.A No.256 of 2007 8