IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 MACA.No. 1489 of 2005() ----------------------- OP(MV) NO.1131/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER: ----------------------- VENUGOPAL, S/O.RAGHAVAN PILLAI, PUTHULATH HOUSE, PUTHULATH ROAD, KALAMASSERY. BY ADV. SRI.RAJIV NAMBISAN RESPONDENT(S): RESPONDENTS:- --------------- 1. VIJAYAN, S/O.SANKARAN, VALAYIL HOUSE, CHERTHALA SOUTH P.O., ALLEPPEY DIST. 2. BABY, S/O.MUKUNDAN, MATTATHIL HOUSE, NEAR PANCHAYAT OFFICE, CHERTHALA SOUTH P.O., ALLEPPEY DIST. 3. THE ORIENTAL INSURANCE COMPANY LTD., MOTOR THIRD PARTY CLAIMS OFFICE, REGIONAL OFFICE, MUTHOOT TOWERS, KOCHI-35. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:- A12: TRUE COPY OF COURSE CERTIFICATE ISSUED BY PRINCIPAL TRAVANCORE INSTITUTE, BALARAMAPURAM DATED 9-9-1984. A13: TRUE COPY OF CERTICIATE ISSUED BY THE PRINCIPAL GOVERNMENT POLYTECHNIC, KALAMASSERY DATED 29-11-1995. A14: TRUE COPY OF ALL KERALA PHOTOGRAPHERS ASSOCIATION MEMBERSHIP CARD OF THE YEAR 1996. A15: TRUE COPY OF ALL KERALA PHOTOGRAPHERS ASSOCATION MEMBERSHIP CARD OF THE YEAR 1998. A16: TRUE COPY OF PROFESSIONAL TAX RECEIPT FOR THE TELEPHONE BOOTH DATED 2-11-1998. A16(a): TRUE COPY OF PROFESSIONAL TAX RECEIPT FOR THE TELEPHONE BOOTH DATED 21-8-1997. A17: TRUE COPY OF CHALAN RECEIPT SHOWING THE REMITTANCE OF LICENCE FEE FOR CHITHRA STUDIO DATED 28-2-2007. A18: TRUE COPY OF DISCHARGE SUMMARY FROM AMRITHA INSTITUTE OF MEDICAL SCIENCE DATED 27-8-2007. A19: TRUE COPY OF TREATMENT CERTIFICATE FROM DR.R.HARISH, ENT SPECIALIST DATED 6-3-2008. A20: TRUE COPY OF BILLS TOTAL NUMBERS 11 FOR RS.39,641.13. /TRUE COPY/ P. S.TO JUDGE. V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1489 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 16th day of December, 2011 JUDGMENT Ramkumar, J. In this appeal filed under section 173 of the Motor Vehicles Act, 1988 (“M.V. Act” for short) the appellant who was the injured in a road traffic accident seeks enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) No. 1131/1998. 2. On 29-1-1998 at about 12.50 p.m. when the appellant was riding his scooter from south to north along the Edappally-Kalamassery National Highway, a mini lorry, driven by the 2nd respondent before the Tribunal in a rash and negligent manner so as to endanger human life, came from the opposite direction and dashed against the scooter, resulting in the appellant sustaining serious head injuries. He had undergone three surgeries before the filing of this appeal and yet another brain surgery during the pendency of this appeal. There is a total period of 126 days MACA 1489/2005 2 hospitalization in two hospitals. On the date of the accident he was 45 years and was running a studio by name “Chithra Studio” at Kalamassery. He was also running a telephone booth (public call office). 3. As against the claim of the appellant that his monthly income was Rs.4,000/-, the Tribunal took into account only a sum of Rs.1,250/- and on that basis awarded a sum of Rs.58,500/- by way of disability compensation. As against the claim of Rs.50,000/- towards pain and suffering, the Tribunal awarded Rs.40,000/-. The Tribunal was prepared to accept that the appellant was deprived of his earnings for one year and awarded Rs.15,000/- at the rate of Rs.1,250/- per month. A sum of Rs.25,000/- was awarded by way of loss of amenities. Rs.2,54,825/- was awarded towards medical expenses, since the said amount was covered by medical bills submitted by the appellant. Towards transport to hospital, a sum of Rs.5,000/- was awarded and towards extra-nourishment and bystander’s expenses, a sum of Rs.12,600/- was awarded. The Tribunal MACA 1489/2005 3 accordingly passed an award a sum of Rs.4,10,925/- Dissatisfied with the said award that the appellant has preferred this appeal. 4. We heard the learned counsel for the appellant as well as the learned counsel for the Oriental Insurance Company Ltd. which has admitted its liability. 5 The monthly income fixed by the Tribunal cannot be justified, since the appellant is having his own photo studio by name “Chithra Studio” at Kalamassery. He has produced true copies of commercial tax receipts both for the telephone booth run by him as well as the receipt for payment of licence fee for Chithra Studio. He has also produced certificate showing that he had undergone training in photography from a private institute as well as secured a certificate from Government Polytechnic, Kalamassery. He has also produced documents to show that he is a member of the Kerala Photographers’ Association. Documents produced in I.A. No.2245/2009 are marked as Exts.A12 to A17 in this appeal. Along with the said petition, MACA 1489/2005 4 the appellant has also produced the discharge certificate from Amritha Institute of Medical Science and medical bills totaling to Rs.39,000/- for the surgery he had undergone in the hospital and the expenses incurred on that count. Those documents are marked in this appeal as Exts.A12 to A20. 6. Considering the additional evidence adduced in this appeal, we are of the view that the monthly income of the appellant can easily be fixed at Rs.4,000/-. There is no dispute that the percentage of his disability is 30%. At the time of the accident he was aged 45 years. Hence, 13 will be the appropriate multiplier to be adopted. Accordingly, the disability compensation payable to the appellant will be at Rs.1,87,200/- .Deducting the disability compensation of Rs.58,500/- awarded by the Tribunal, the enhanced amount towards disability compensation will be Rs.1,28,700/-. 7. Reckoning the monthly income of Rs.4,000/-, the loss of earnings of the appellant for one year will come to Rs.48,000/- and deducting Rs.15,000/- awarded by the Tribunal, the compensation due to the appellant by way of MACA 1489/2005 5 loss of earnings will be at Rs.33,000/-. 8. No amount by way of disfigurement has been awarded to the appellant. The appellant was physically present before us and we have found that there are deep pits and fissures on the frontal area of his skull. There is a curve fissure behind the head also. Hence, we are of the view that a sum of Rs,25,000/- should be awarded towards disfigurement. 9. The loss of amenities awarded by the Tribunal was Rs.25,000/- which is inadequate. A further amount of Rs.15,000/- is awarded towards that head. In this appeal the appellant has produced medical bills totaling to Rs.39,000/- incurred after the date of the award. He had undergone surgery from Amritha Institute of Medical Sciences, Ernakulam. We see no reason why the said amount should not be awarded. Accordingly, we award the said amount of Rs.39,000/- towards medical expenses. 10. Thus, the total enhancement due to the appellant will be Rs.2,40,700/-. The said amount shall bear interest @ MACA 1489/2005 6 7.5% per annum from the date of O.P.(MV) till realization. The 3rd respondent Insurance Company shall deposit the said amount within two months from today. As provided in the impugned award, the Insurance Company can recover the said amount after deposit, from respondents 1 and 2 namely, Vijayan and Baby who have not challenged that part of the award by the Tribunal. In the result, this appeal is allowed in part with proportionate costs. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn.