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 16TH JUNE 2010 / 26TH JYAISTHA 1932 MACA.No. 23 of 2008(A) ---------------------------------- (O.P(MV).NO.3430/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM) .................... APPELLANT/PETITIONER: ------------------------------------- BINU.S, S/O R.SUBRAMANIAN, 'CHAITHANYA', KATTIKUZHIYIL HOUSE, THAIKKATTUKARA, ALWAYE-6. BY ADV. SRI.O.V.MANIPRASAD. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. K.B.KAREEM, KARAKUNNAM HOUSE, RAYONPURAM P.O., VALLAM,(VIA) PERUMBAVOOR, PIN-683 542. 2. E.K.NAZAR, ELAMANA MELEDATH HOUSE, KOTTAPPURAM KARA, ALANGAD VILLAGE, (VIA) ALWAYE. 3. THE ORIENTAL INSURANCE CO. LTD., MATTANCHERRY, COCHIN-2. R3 BY SRI. MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 23 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this 16th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.3430 of 1998 of the Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated May 5, 2006, awarding a compensation of Rs.83,000/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 21 at the time of the accident and used to earn Rs.5,000/- per month as an Executivie. On September 13, 1998 at about 1.45 p.m. the claimant was riding his motor cycle along the Paravur – Aluva main road. When he reached near Malikapeedika, a Maruthi car bearing registration No.KL-7/T 7537, driven by the second respondent, came at a high and dashed MACA 23/2008 2 against the motor cycle of the claimant. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending car by the second respondent. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending car are jointly and severely liable to pay the compensation to the claimant. 3. Respondents 1 and 2, owner and driver of the offending car, remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending vehicle, filed a written statement, admitting the policy and further contended that the accident occurred due to the negligence on the part of the claimant. 4. Exts. A1 to A14 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.83,000/- with interest at the rate of 7.5% p.a. from the date of petition till MACA 23/2008 3 realization. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant and the learned counsel for the third respondent. 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, driver of the offending car, is not seriously 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.A6 copy of the wound certificate issued from Karothukuzhi hospital, Aluva:- “1) Contusion over low back. 2) Abrasions on forehead, ® knee, ® elbow and ® shoulder. 3) Laceration over scalp and (L) eyebrow.” MACA 23/2008 4 8. The Tribunal awarded a total compensation of Rs.83,000/-. Break up of the compensation awarded is as under:- Transportation : Rs. 1,000/- Damage to clothing : Rs. 500/- Extra nourishment : Rs. 500/- Attendant expenses : Rs. 500/- Treatment expenses : Rs.26,000/- Loss of earning : Rs. 4,500/- Pain and suffering : Rs.30,000/- Loss of amenities : Rs.20,000/- and enjoyment of life. ------------------ Total : Rs.83,000/- ======= 9. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused. 10. As directed by this Court, the claimant appeared before the Medical Board attached to the Medical College Hospital, Thrissur and the Board has assessed his disability as 18%. This certificate is marked as Ext.X1. The Board has certified thus:- “There is stiffness of cervical spine. Lateral flexion and rotation is restricted. Laprotomy MACA 23/2008 5 scar-midline. Splenectomy has been done. Afte splenectomy, there is incused risk of respiratory infection. Laprotomy can cause adhesive obstruction in intestine. “ 11. The Tribunal took monthly income of the claimant as Rs.1,500/-. Ext. A10 shows that he was emplolyed as a Manager in a show room and was earning Rs.5,000/- per month. Therefore, we feel that his monthly income can reasonably be fixed at Rs.2,175/-. He was aged 21 at the time of the accident. Therefore, proper multiplier is 17. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.79,866/- (Rs.2175 x 12 x 17 x 18%). 12. The Tribunal awarded Rs.4,500/- towards the loss of earnings for three months at the rate of Rs.1,500/- per month. As we have fixed his monthly income at Rs.2,175/, the claimant is entitled Rs.6,525/- for the loss of earnings. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, are not disturbing the same. MACA 23/2008 6 13. In the result, the claimant is entitled to an additional compensation of Rs.86,391/-. He is entitled to interest @ 7.5% from the date of petition till realization. The third respondent being the insurer of the offending car shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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