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 5TH OCTOBER 2010 / 13TH ASWINA 1932 MACA.No. 1609 of 2004() ----------------------- OP.MV.682/1999 of MACT,TRIVANDRUM .................... APPELLANT:APPLICANT:- ------------------------------------ SASIKUMAR, S/O.BHASKARAN, UMA SADANAM, P.O.PANOOR, THALASSERY TALUK, KANNUR DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENTS:RESPONDENTS:- ------------------------------------------- 1. K.P.RAMACHANDRAN, PRAJALAYAM, P.O. CHOKLI. 2. K.P.KUNHIRAMAN, S/O.NANU, KANDIYAN, PARAKENDYANTAVIDE HOUSE, PUTHUR, KAIVELIKKAL. 3. M/S.ORIENTAL INSURANCE COMPANY, KANNUR. ADV. SRI.P.JAYASANKAR FOR R3 SRI.P.JAYASANKAR BY ORDER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. = = = = = = = = = = = MACA.No.1609 of 2004. = = = = = = = = = = = Dated this the 5th day of October, 2010. J U D G M E N T Barkath Ali, J. The appellant is the claimant in OP(MV)No.682/1999 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. He sustained the following injuries in a motor accident which occurred on July, 19, 1994 at about 6.00 am.:- (i) Contusion with abrasion over the anterior medial aspect of the right knee joint. (ii) Abrasion over the upper 1/3rd on the right leg, lower 1/3rd of the right upper arm. (iii) Pain and tenderness over the right hip region. (iv) X-ray revealed a fracture of the trochanter. 2. The claimant was aged 46 at the time of the accident and was earning a salary of Rs.4,000/- as a Superintendent in the Department of Collegiate Education. The accident happened while he was travelling in an MACA.No.1609/2004. 2 autorikshaw bearing registration No.KL 13/1337 from Panoor to Thalassery which was driven by the 2nd respondent and when the autorikshaw reached at Kuttimakool it dashed against a cyclist and the claimant was thrown out of the autorikshaw and sustained the injuries mentioned above. Alleging negligence against the 2nd respondent, the driver of the offending autorikshaw the claimant filed OP before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.10,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending autorikshaw remained absent before the Tribunal. Respondent No.3, the Insurer of the offending autorikshaw filed a written statement admitting the policy of the offending vehicle. 4. The claimant was examined as Pw1 and the doctor who treated him was examined as Pw2 and Exts.A1 to A31 were marked on the side of the claimant. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that the accident MACA.No.1609/2004. 3 occurred due to the negligence of the 2nd respondent and awarded a compensation of Rs.2,75,000/- with interest @9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance company. 6. The Tribunal awarded a total compensation of Rs.2,75,000/-. The break up of the compensation amount awarded is as under: Loss of earning : Rs. 40,155.00 Transportation charges : Rs. 10,000.00 Extra nourishment : Rs. 2,000.00 Damage to cloth : Rs. 250.00 Medical incidental expenses : Rs.1,23,367.00 Bystander expenses : Rs. 5,000.00 Pain and suffering : Rs. 30,000.00 Permanent partial disability : Rs. 38,400.00 Loss of amenities : Rs. 25,000.00 ----------------------- Total : Rs.2,74,172.00 ----------------------- Rounded to: Rs.2,75,000.00 ========= 7. Counsel for the claimant sought enhancement of MACA.No.1609/2004. 4 compensation for the disability caused and on other heads. The Tribunal took the monthly income of the claimant after retirement as Rs.2,000/- and the percentage of disability as 20% and adopted a multiplier of 8 and awarded a compensation of Rs.38,400/- for the disability caused. Ext.A27 is the certificate issued by the Principal, College of Teacher Education, Thiruvananthapuram, showing the employment of the claimant, Exts.A28 and A29 the salary certificates show that he was having a salary of Rs.4,330/- during 1994. Petitioner did not loose his job as a result of the injury sustained. The claimant was aged 46 at the time of accident and has now retired from service. Therefore, the Tribunal is perfectly justified in taking his monthly income as Rs.2,000/- for granting compensation for the disability caused. The multiplier adopted by the Tribunal as 8 appears to be reasonable. But the Tribunal took the disability as only 20% which appears to be very low. In Ext.A8 certificate of disability, the Doctor, Pw2 had certified that the claimant had the following disabilities: MACA.No.1609/2004. 5 1) Partial ankylosis of hip 50% reduction of the range of motion. 2) Partial ankylosis of the right knee with 25% reduction of the range of motion. 3) Partial ankylosis with reduction of range of motion ankle of and subtalar joint on the right side. 4) Osteo arthritis of the hip as well as right knee shortening of the right lower limb by 3 cms. and wasting muscles of right thigh and leg. 8. Taking into account the nature of the disability suffered by the claimant we feel that the 35% of disability assessed by Pw2 can be accepted. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.67,200/- (2000x12x8x35%). Thus, on this count the claimant is entitled to an additional compensation of Rs.28,800/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 9. But, there is another aspect in this case. Claimant has undergone total hip replacement on March 22, 1999 and requires future treatment as evidenced by Ext.A24, medical MACA.No.1609/2004. 6 certificate issued from Kovai Medical Center. Therefore, we feel that the compensation of Rs.25,000/- would be reasonable for future treatment expenses. 10. Thus the claimant is found entitled to a total additional compensation of Rs.53,800/-. He is entitled to interest @7.5% per annum from the date of petition till realisation and proportionate cost. The 3rd respondent being the Insurer of the offending vehicle shall deposit the entire 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. Kvs/-