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 2ND JUNE 2010 / 12TH JYAISTHA 1932 MACA.No. 497 of 2003() ---------------------- OPMV.763/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER IN M.V.O.P --------------------------------------------- THAMPI, S/O.PLAKKOOTTATHIL CHACKO, THIRUVALLA TALUK, IRAVIPERUR KARA, VALLAMKULAM VILLAGE. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): RESPONDENTS IN M.V.O.P ------------------------------------- 1. BELBIR SING, F.M.O., INS KRISHNA, KOCHI-682 004. 2. SHAJU, S/O.BALAN, THURUTHIYIL HOUSE, P.O.NADAVARAMBU. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., IRINJALAKUDA. ADV. SMT.K.C.BEENA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.497 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.763/1994 of Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated August 9, 2002 awarding a compensation of Rs. 43,000/- 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 aged 45 at the time of the accident and was employed as a Line Assistant in the Kerala State Electricity Board, Major Section getting a salary of Rs.4,200/- per month. On November 18, 1993 at about 9.a.m., claimant was returning to his house in his cycle after his official duty. When he reached at Vellangallore Krishi Bhavan, a motor cycle bearing Reg.No.KRF 7394 came at a high speed from the opposite side and knocked him down. The claimant sustained MACA.No.497/2003 2 serious injuries. According to the claimant, accident occurred due to the rash and negligent riding of the offending motor cycle by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. 3. First respondent, the owner of the offending motor cycle remained absent and was set ex parte by the Tribunal. Second respondent, the rider of the motor cycle filed a written statement admitting the accident, but denying the liability. The third respondent filed a written statement admitting the policy. 4. Pws 1 and 2 were examined and Exts.A1 to A15 were marked on the side of the claimant before the Tribunal. On the side of the respondents, Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent riding of the offending motor cycle by second respondent and awarded a compensation of Rs. 43,000/- with interest @ 9% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the MACA.No.497/2003 3 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 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 claimant sustained the following injuries as revealed from Ext.A3, the copy of the wound certificate and Ext.A8, the discharge card and Ext.A9, the Medical Certificate. 1. Fracture of both bones right leg. 2. Multiple abrasions of right elbow left side of face. 3. Lacerated wound on the scalp right frontal. 8. He was initially treated in West Fort Hospital, Thrissur and was treated there from November 18, 1993 to November 22, 1993. Thereafter he was admitted in S.H. Medical Centre, Kottayam and he was treated there till March 2, 1994. Fracture was reduced and internal MACA.No.497/2003 4 fixation was done after bone grafting. He was assessed to have a disability of 14%. In Ext.A9, the certificate of disability, it is stated that there was loss of sensation, mild limping and shortening of ½ inches and wasting and weakness of right calf anterio lateral leg muscles. He has difficulty to stand on right leg, to run, to jump, to walk fast and to squat. PW2, the doctor, was examined to prove the disability. 9. The Tribunal awarded a total compensation of Rs.43,000/-. The break up of the compensation awarded is as under : Loss of earnings - Rs.23,016/- Transportation expenses - Rs. 1,500/- Medical expenses - Rs. 1,200/- Bystander's expenses - Rs. 1,000/- Pain and suffering - Rs.10,000/- Loss of amenities - Rs. 4,000/- Disability and future medical expenses - Rs. 2,284/- ----------------- Total - Rs. 43,000/- =========== 10. Counsel for the claimant sought enhancement of the compensation for the disability caused, for pain and suffering endured and for the loss of amenities and enjoyment of life. MACA.No.497/2003 5 11. The claimant was working as Line Assistant in KSEB and was drawing a salary of Rs.3,836/- as evident from Ext.A10 salary certificate. The Tribunal accepted the said salary and awarded a compensation of Rs. 2284/- for the permanent disability and for future medical expenses. Thus no separate compensation was awarded for the disability caused. 12. For assessing the disability, we feel that the monthly income of the claimant can be reasonably assessed at Rs. 3,500/-. The percentage of disability, in our view, can be assessed at 8% taking into account the disabilities mentioned in Ext.A9. He was aged 45 at the time of the accident. Therefore, a multiplier of 13 would be reasonable. Thus calculated for the disability caused, claimant is entitled to a compensation of Rs. 43,680/- ( 8% x 3500 x 12 x 13). As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the claimant is entitled to an additional compensation of Rs. 43,680/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. MACA.No.497/2003 6 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.497/2003 7