IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 MACA.No. 739 of 2008() ---------------------- OPMV.1797/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPLICANT ----------------------- SURENDRAN, S/O.GOPALAN PILLAI TENVILA PUTHEN VEEDU, KARODU DESOM KARODU WARD, VILAPPILSALA P.O. THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): RESPONDENTS -------------------------- 1. BHUVANACHANDRAN AJITH AUTO ENGINEERING WORKS, TC-14/1986-2 BAKERY JUNCTION, PALAYAM, THIRUVANANTHAPURAM. 2. THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO.LTD., PULIMOODU THIRUVANANTHAPURAM. ADV. SRI.LIJI.J.VADAKEDOM FOR R1 SMT.P.K.SANTHAMMA FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.739 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1797/2003 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. He sustained the following injuries in a motor accident that occurred on October 8, 2003 at about 10.15 p.m.: 1) Cervical Spinal injury with quadriplegia. 2) M.R.I. scan revealed compression spine injuries affecting C3 to C8. 2. The accident happened while the claimant was walking along Anthiyoorkonam-Moongode public road and when he reached near Neerottukonam Kalungu, he was knocked down by an auto rickshaw bearing Reg.No.KBV 9646 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 10,00,000/-. 3. First respondent, the owner-cum-driver of the offending MACA.No.739/2008 2 auto rickshaw filed a written statement admitting the accident, but denied the liability. The second respondent, the insurer of the offending auto rickshaw filed a written statement admitting the policy. 4. Exts.A1 to A18 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending auto rickshaw by first respondent and awarded a compensation of Rs. 5,62,250/- with interest @ 7.5% per annum from the date of petition till realisation. 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. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is MACA.No.739/2008 3 entitled to any enhanced compensation. 7. The break up of the compensation awarded is as under : Loss of earning - Rs.24,000/- Medical and incidental expenses - Rs. 11,000/- Transportation to the hospital - Rs. 5,000/- Extra nourishment - Rs. 5,000/- Engaging a bystander - Rs. 5,000/- Damage to clothing - Rs. 250/- Pain and suffering - Rs. 50,000/- Permanent disability - Rs.2,88,000/- Loss of amenities - Rs.1,44,000/- Future medical expenses - Rs. 30,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for medical expenses, for bystander expenses, for pain and suffering endured and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/- and took the percentage of disability as 80% as certified by the doctor in Ext.A13 and Ext.A14, certificates of disability and adopted a multiplier of 15 and awarded Rs. 2,88,000/- for the disability caused. Claimant was an auto rickshaw driver aged 39 at the time of the accident. Ext.A12 is his driving licence. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. The claimant was MACA.No.739/2008 4 completely paralysed and bedridden. He was brought before the Tribunal and the Tribunal has noted his pathetic condition. Therefore, the percentage of disability taken by the Tribunal as 80% appears reasonable. The multiplier adopted by the Tribunal as 15 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 4,32,000/- ( 80% x 3000 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs.1,44,000/-. 10. The Tribunal awarded Rs. 11,000/- for medical expenses. Taking into consideration the nature of the injury sustained and the treatment he has undergone, we feel that a compensation of Rs. 25,000/- would be reasonable towards medical expenses. 11. Rs.50,000/- is awarded by the Tribunal for pain and suffering endured by the claimant. Claimant is now completely bed ridden and still suffers the pain. Therefore, we feel that a compensation of Rs.75,000/- is would be reasonable on this count. 12. The Tribunal awarded Rs.5,000/- for engaging a bystander. As the claimant is still now needs the help of a bystander, we feel that a MACA.No.739/2008 5 compensation of Rs. 15,000/- would be reasonable on this count. 13. Towards future medical expenses, Rs.30,000/- was awarded by the Tribunal which appears to be very low. Having regard to the nature of the injury sustained and the fact that he requires treatment in future, we feel that a compensation of Rs. 60,000/- would be reasonable on this count. The claimant will not be entitled to any interest for the amount under this count. 14. The Tribunal awarded Rs. 24,000/- towards loss of income for one year @ Rs. 2,000/- per month. As we have fixed the monthly income of the claimant as Rs. 3,000/-, he is entitled to a compensation of Rs. 36,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 12,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. In the result, the claimant is entitled to an additional compensation of Rs. 2,35,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The claimant will not be entitled to any interest for the enhanced MACA.No.739/2008 6 amount of Rs.30,000/- awarded under the head of future expenses. The second 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 sv. MACA.No.739/2008 7