IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 MACA.No. 280 of 2005() ---------------------- OPMV.1487/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER ----------------------- K.C.RAJU, AGED 38 YEARS, SON OF CHAKKAPPAN, KUZHIVELIL HOUSE, MANGATTOOR KARA, KOLENCHERY P.O. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.NITHYA.K. RESPONDENT(S): RESPONDENTS --------------- 1. K.TAMIL SELVI, W/O.KRISHNAMOORTHY, PROP. SRI.KUNGUMAL TRANSPORTS 30, POOSAL STREETS PERUMBALOOR, THIRUCHIRAPPALLI DISTRICT. 2. P.SELLADURAJ, S/O.RAJU, ARASULAR POST, VEPPAMTHATTAL TALUK, PERUMBALOOR DISTRICT. 3. THE UNITED INDIA INSURANCE COMPANY LIMITED, PERUMBALOOR. ADV. SRI.R.S.KALKURA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.280 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February, 2010 JUDGMENT Barkath Ali, J. Appellant has filed this appeal under Section 173 of Motor Vehicles Act for enhancement of the amount of compensation awarded by the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) No.1487/99 by award dated August 7, 2004. 2. The facts in brief are these : On October 15, 1998 at about 1.00 p.m. when the appellant/claimant was driving his tanker lorry bearing Reg.No.KL6/8256 along Shoolagiri-Krishnagiri road, a lorry bearing Reg.No.TN 45-W/1467 driven by the second respondent came at a high speed from the opposite side and collided with the lorry of the appellant. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the negligence of the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs. 7 lakhs. MACA.NO.280/05 Page numbers 3. Respondents 1 and 2, the owner and driver of the offending vehicle remained absent and were set ex parte before the Tribunal. The third respondent, insurer of the offending vehicle, filed a written statement admitting the policy, but contending that there was also negligence on the part of the claimant. 4. PWs 1 and 2 were examined on the side of the claimant and Exts.A1 to A20 were marked on his side before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked . 5. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 1,23,200/- The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellant and Insurance Company. 7. 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 ? MACA.NO.280/05 Page numbers 8. The Tribunal awarded the compensation as follows : Loss of earnings - Rs. 7,200/- Transportation Expenses -Rs. 5,000/- Attendant Expenses -Rs. 3,000/- Extra nourishment -Rs. 2,500/- Damage to clothing -Rs. 500/- Treatment Expenses -Rs. 70,000/- Pain and suffering -Rs. 25,000/- Loss of amenities -Rs. 10,000/- -------------- Total Rs.1,23,200/- =========== 9. The counsel for the appellant argued that the compensation awarded by the Tribunal is very low and that no compensation has been awarded for the disability caused. The claimant sustained the following injuries as revealed from Exts.A7 to A10, copies of which were produced before us for perusal. Ext.A7 is the O.P. ticket issued from the Govt.Hospital, Krishnagiri. Ext.A8 is the case summary issued from the St.Johns Medical College Hospital, Bangalore. He was treated there from 15-10-1998 to 09-11-1998. 1. Lt.Post frontal Haemorrhage contusion 2. Inter Hemispheric contusion 3. Pneumocephalus 4. Fracture of frontal bone, fracture of medial wall of Rt. orbit, fracture root of Rt. orbit. 5. Traumatic optic neuropathy Rt. MACA.NO.280/05 Page numbers 10. Ext.A8 shows that elevation and depressed fracture duroplasty and scalp repair were done. Ext.A10 discharge summary issued from the Medical Mission Hospital, Kolenchery shows that he was treated there as an inpatient from 10-11-98 to 4-12-1998. Exts.A11, A12 and A14 are the Medical Certificates issued from the hospital. Ext.A19 is the certificate of disability issued from Medical Mission Hospital, Kolenchery which shows that claimant has the following disabilities : Complete bilateral loss of olfactory functions. Means total damage of both Olfactory nerves leading to total loss of smell and taste. 24% functional loss of both optic nerves (nerves for vision) left affecting more than that of right leading to optic atrophy which in turn lead to loss of vision. Damage to the Oculomotor, Troclear and Abducens nerves ( IIIrd, IVth and VIth cranial nerves for eye movements) coupled with fracture of the orbit ( the socket of the eye) leading to restriction of elevation and abduction of the left eye. This injury leads to double vision ( loss of ability to perceive single image). Permanent partial damages to both acuity of MACA.NO.280/05 Page numbers vision and axis of vision, he will not be able to drive any vehicle and the vision will not improve with refraction ( using spectacles). In addition , he stands 50% risk of developing post traumatic epilepsy ( fits) in future for which he is taking anticonvulsants regularly and is complaining of head aches and loss of memory. 11. The Tribunal did not award any compensation for the disability caused. Ext.A19 shows that claimant has total loss of sense of smell and taste and his vision is affected. It is certified in Ext.A10 that he has a disability of 35%. 12. Taking into consideration the nature of the injury sustained by the claimant, we feel that his disability can be assessed at 25%. The Tribunal took his monthly income as Rs. 2400/- per month as he was a driver. He was aged 33 at the time of the accident. Therefore, the proper muliplier will be 17. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 1,22,400/-. ( 25% x 2400 x 12 x 17). 13. The Tribunal awarded Rs. 10,000/- for loss of amenities and enjoyment of life. Taking into consideration the disability caused MACA.NO.280/05 Page numbers to the claimant, we feel that a compensation of Rs. 15000/- would be reasonable on this count. The compensation awarded on other counts is not questioned before us. 14. In the result, the appellant/claimant is entitled to an additional compensation of Rs. 1,27,400/-. The claimant is also entitled to interest at the rate of 9% per annum from the date of petition till the date of payment and proportionate cost. 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 with notice to the claimant. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. 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