IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 MACA.No. 69 of 2006() --------------------------------- OP(MV)NO .468/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ------------------------------------------------------------- M.K.MOHANAN, S/O.M.V.KOCHUKUTTAN, MATATHIPARAMBIL HOUSE, PERAMBRA DESOM, KODAKARA VILLAGE, PERAMBRA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.M.V.THAMBAN SRI.SREEKANTH.K.R SMT.THARA THAMBAN RESPONDENT(S): -------------------------- 1. K.D.JOJU, S/O.DOMINI, KOCHAKADAN HOUSE, PERAMBRA P.O., KODAKARA, THRISSUR DISTRICT. 2. THE MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., PERINCHERRY BUILDING, ROUND NORTH, TRISSUR-680 001. R2 BY ADV. SMT.M.HEMALATHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 69 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 7th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in M.V.O.P. No.468/1999 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated May 11, 2005 awarding a compensation of ` 83,266/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on August 24, 1998 at about 6.15 p.m. at Kurumali. While the claimant was travelling in an auto-rickshaw bearing registration No.KL-8/C 1938, due to the negligence of the driver of the auto-rickshaw (first respondent), it hit on a tree and overturned. The claimant sustained serious injuries. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 4,00,000/-. MACA 69/2006 2 3. The first respondent, the owner-cum-driver of the auto- rickshaw, though entered appearance did not file any written statement. The second respondent, the insurer of the offending auto-rickshaw, filed a written statement contending that there was no negligence on the part of the first respondent. PWs.1 to 5 were examined and Exts.A1 to A13 were marked on the side of the claimant. Ext.B1 was marked on the side of the second respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the first respondent and awarded a compensation of ` 83,266/- with interest @ 6% p.a. from the date of petition till realization and proportionate cost. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the first respondent is not seriously challenged in this appeal. Therefore, MACA 69/2006 3 the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The claimant sustained the following injuries in the accident:- 1) (L) eye periorbita oedema. 2) Bleeding nose. 3) Multiple abrasion (R) side of face, (R) shoulder. 4) Lacerated wound on (L) parietal area. 5) Lacerated wound (L) eye brow. 6) Fracture base of the skull. 7) SAH 8) Fracture nasal bone and (L) fronto parietal. 9) (L) eye sub conjunctival haemorrhage, optic nerve compression/damage. 7. The Tribunal awarded a total compensation of ` 83,266/-. Break up of the compensation awarded is as under:- Extra nourishment : ` 1,000 and wages to attendants. Transport to hospital : ` 300 Medical expenses : ` 21,616 Loss of earning : ` 12,750 Pain and suffering : ` 15,000 Loss of amenities and : ` 5,000 enjoyment in life. Disability : ` 27,000 ------------------ Total : ` 83,266 ======= 8. The counsel for the claimant sought enhancement of MACA 69/2006 4 compensation for the disability caused and on other heads. 9. The claimant who was aged 40 at the time of the accident was an employee of Appolo Tyres, Perumbavoor. The Tribunal though took the monthly income of the claimant as ` 4,500/- as shown in Ext.A11 certificate, for the purpose of assessing compensation for the disability caused monthly income was taken as ` 1,500/- on the ground that his earning capacity is affected only after his retirement. His permanent disability was assessed as 30% on the basis of Ext.A12 certificate of disability. The Tribunal adopted multiplier of 5 and awarded a compensation of ` 27,000/- for the disability caused. The claimant was working as an Assistant Manager of Appolo Tyres and earning ` 5,684/- per month as revealed from Ext.A11 salary certificate. PW3 is the Assistant Manager of Appolo Tyres and PW4 is the Deputy Manager. They proved Ext.A11 certificate. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at ` 4,000/- for the purpose of assessing compensation for the disability caused. 10. As regards the percentage of disability caused, MACA 69/2006 5 Ext.A10 certificate shows that the claimant has a permanent disability of 30%. The claimant has now the following disabilities:- 1) Visual impairment left eye 20%. 2) Fracture CST leak (R) ear 5% 3) Acute onset seizure 5% Considering the above aspect, whole body disability of the claimant can be taken as 15%. As the claimant was aged only 40 at the time of the accident, multiplier of 15 would be reasonable in this case. Thus calculated for the disability caused, the claimant is entitled to a compensation of ` 1,08,000/- ( ` 4,000/- x 12 x 15 x 15%). Thus the claimant is entitled to an additional compensation of ` 81,000/- on this count. 11. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. The claimant is entitled to interest @ 7.5% per annum for the compensation already awarded and also for the enhanced compensation. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. MACA 69/2006 6 12. In the result, the claimant is found entitled to an additional compensation of ` 81,000/-. He is entitled to interest @ 7.5% per annum for the compensation already awarded and also for the enhanced compensation from the date of petition till realization. The second respondent being the insurer of the offending vehicle 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