IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 MACA.No. 128 of 2004() ---------------------- OPMV.328/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/PETITIONER ---------------------------------- MOHAMMED HAJI, KOLAKKADAN HOUSE, VALIYAD-KODUR P.O. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): RESPONDENTS -------------------------- 1. LATHEEF, NARIPATTA HOUSE, POOKOTTUR P.O. (DRIVER) 2. K.HANEEFA, KALATHINGAL HOUSE, POOKOTTUR P.O. (OWNER) 3. UNITED INDIA INSURANCE CO.LTD., MALAPPURAM. 4. K.K.MOHAMMED HAJI, KARUVANKUNNU HOUSE, P.O.VALIYORA (POLICY HOLDER) ADV. SRI.M.A.HAKIM SHAH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 128 of 2004 ------------------------------------------------------ Dated: JUNE 7, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 328/1998 on the file of the Motor Accidents Claims Tribunal, Manjeri, challenges the judgment and award of the Tribunal, dated, February 18, 2003 awarding a compensation of Rs.91,050/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 48 at the time of the accident and was earning Rs.3000/- per month by doing some business, according to the claimant. On October 10, 1996 at about 7.15 p.m. while the claimant was walking along the side of the road at down hill, Malappuram, he was knocked down by a jeep bearing registration No.KRM 3697 driven by the 1st respondent. The claimant sustained very serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 1st respondent. The 1st respondent as the driver, the 2nd respondent as the owner and the 3rd respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. M.A.C.A. 128 of 2004 2 3. Respondents 1 and 2, the driver and the owner of the offending jeep filed a joint written statement admitting the accident. The 3rd respondent, insurer of the offending jeep, filed a written statement admitting the policy and further contended that the name of the insurer shown in the policy was one K.K.Mohammed and that therefore he is a necessary party to the petition. In the light of the said contention raised by the 3rd respondent, the said K.K.Mohammed was impleaded as supplementary 4th respondent at the instance of the petitioner. He remained absent and was set ex parte by the Tribunal. 4. Exts.A1 to A6 were marked on the side of the claimant before the Tribunal. The certificate of disability issued by the Medical Board was marked as Ext.X1. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 1st respondent and awarded a compensation of Rs.91,050/- with interest at 9% per annum from the date of petition till realisation against respondents 1, 3 and 4. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. M.A.C.A. 128 of 2004 3 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 1st 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.A2, copy of the wound certificate, issued from the KPM Hospital, Malappuram:- “pain right leg, deformity of right leg, abrasion right knee, abrasion left leg, abrasion forehead and comminuted fracture of right tibia.” Ext.A2(a) is another wound certificate issued from Kovai Medical Centre, Coimbatore. Ext.A3 is the discharge card issued from that hospital. It is reported in Ext.X1certificate issued by the Medical Board that he has suffered a partial permanent disability of 4% as there was shortening of the right leg by 2 cms., thickening of the fracture site due to excessive callus formation with limitation of terminal degree of flextion of right knee joint. 8. The Tribunal awarded a total compensation of Rs.91,050/-. The break up of the compensation awarded is as under:- loss of earnings - Rs.10,800/- transport to hospital - 2,000/- M.A.C.A. 128 of 2004 4 extra nourishment - Rs.1,000/- bystander's expenses - 1,000/- treatment and medical expenses - 50,000/- pain and suffering - 15,000/- disability - 11,250/- 9. The Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused, loss of amenities and enjoyment of life,for pain and suffering endured etc. The Tribunal took the monthly income of the claimant as Rs.1800/-, accepted 4% disability assessed by the Medical Board in Ext.X1 and adopted a multiplier of 13 and awarded Rs.11,250/- for the disability caused. As the claimant claims to be a businessman, we feel that his monthly income can be reasonably fixed at Rs.2500/-. The percentage of disability mentioned in Ext.X1 and the multiplier adopted are not seriously challenged. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.15,600/-. Thus on this count the claimant is entitled to an additional compensation of Rs.4350/-. 10. The Tribunal awarded a compensation of Rs.10,800/- towards loss of earnings i.e. for six months at the rate of Rs.1800/- per month. We have fixed the monthly income of the claimant at M.A.C.A. 128 of 2004 5 Rs.2500/-. Therefore towards loss of earnings, the claimant is entitled to a compensation of Rs.15,000/- (at the rate of Rs.2500/- per month). Thus on this count the claimant is entitled to an additional compensation of Rs.4200/-. 11. For the pain and suffering endured, the Tribunal awarded a compensation of Rs.15000/- which appears to be inadequate. Having regard to the nature of the injuries sustained, we feel that a compensation of Rs.20,000/- would be reasonable on this count. Thus on this count the claimant is entitled to an additional compensation of Rs.5000/-. 12. It was pointed out by the counsel for the appellant that no compensation was awarded for the loss of amenities and enjoyment of life. Taking into consideration the nature of the injuries sustained and the disabilities caused to him, we feel that a compensation of Rs.10,000/- would be adequate for the loss of amenities and enjoyment in life. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 13. Thus the claimant is entitled to an additional compensation of Rs.23,550/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 3rd M.A.C.A. 128 of 2004 6 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 mt/-