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 26TH MAY 2011 / 5TH JYAISHTA 1933 MACA.No. 1207 of 2005() ---------------------------------- OPMV.342/1999 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): PETITIONER:- -------------------------------------------- A.K.SUJATHA,W/O.UTHAMAN ASSARIKKANDY HOUSE, ANJARAKKANDY P.O, MAMBA,KANNUR DIST. BY ADV. MR.P.NARAYANAN RESPONDENT(S): RESPONDENTS:- -------------------------------------------------- * 1. P.RAVINDRAN, S/O.ACHUTHAN, MATTAN HOUSE, PODIKKUNDU, PO,PALLIKKUNNU, KANNUR DIST.(DELETED) * THE NAME OF THE IST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DTD. 12.12.08 IN IA. 3360/08. 2. MANAGING PARTNER, PRAVEEN TRAVELS UPSTAIR OF GOPAL DIARY DEPOT, S.M.ROAD, KANNUR. 3. NEW INDIA ASSURANCE CO.LTD, REP BY IT'S BRANCH MANAGER MUNICIPAL BUS STAND, KANNUR. R3 BY ADV. MR.M.RAJAGOPALAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1207 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 26th day of May, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 342/1999 on the file of the Addl. Motor Accidents Claims Tribunal (Addl. District Judge), Thalssery. In this appeal she challenges the judgment and award of the Tribunal dated November 29, 2004 awarding a compensation of ` 58,525 for the loss caused to her on account of the injuries sustained by her in a motor accident. 2. The accident happened on November 30, 1998 at about 10.30 a.m. at Thana. While the claimant was walking along with his friends along Kannur – Thalassery road and reached near the Sadhoo Kalayanamandapam at Thana, they were knocked down by a bus bearing registration No. KRC 9632 driven by the first respondent. The claimant sustained the following injuries in the accident:- 1) Tenderness (L) thigh. MACA 1207/2005 2 2) Haematoma and abrasions with tenderness on (R) leg lower third. 3) Comminutted fracture of right tibia. 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 ` 3,15,000. 3. This O.P. was tried along with other Original Petitions filed by other injured persons in the accident. Respondents 1 and 2, the driver and the owner of the offending bus, remained absent before the Tribunal. The third respondent, the insurer of the offending bus, filed a written statement admitting the policy, but denied the negligence of the first respondent. PWs.1 and 2 were examined and Exts.A1 to A17 and Ext.X1 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of first respondent and awarded a compensation of ` 58,525 with interest @ 9% p.a. from the date of petition till MACA 1207/2005 3 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 challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The Tribunal awarded a total compensation of `58,525. Break up of the compensation awarded is as under:- Transportation expenses : ` 3,500 Bystander's expenses : ` 5,700 Extra nourishment : ` 2,300 Damage to clothing : ` 500 Treatment expenses : ` 5,012 Loss of earning : ` 16,500 Pain and suffering : ` 15,000 Discomfort and other : ` 10,000 MACA 1207/2005 4 inconvenience in the enjoyment of life. ------------------ Total : ` 58,512 Rounded to : ` 58,525 ======= 7. The counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 8. The Tribunal awarded ` 10,000 for disability caused. It is seen from Ext.A6 certificate of disability dated September 22, 2001 that the claimant is now suffering from parisis of right lower limb due to pediculitis and filarial lymphadent. As PW2 the claimatn testified that she was completely laid up for 3 ½ years. Ext.A9 is the certificate of Grama Panchayath, Anjarakandy to that effect. Ext.X1 the treatment record also shows that she was under treatment for long period. Taking into consideration the nature of the injuries sustained by the claimant and the period of treatment she has undergone and nature of disability caused to her, we feel that the percentage of disability assessed by the Medical Board in Ext.A6 as 40% is MACA 1207/2005 5 reasonable. 9. As there is no evidence to show that the claimant was employed elsewhere, we feel that income taken by the Tribunal as ` 1,500 per month appears to be reasonable. Proper multiplier that can be adopted in this case is 17. Thus calculated for the disability caused, the claimant is entitled to a compensation of ` 1,22,400 (` 1,500 x 12 x 17 x 40%). Thus the claimant is entitled to an additional compensation of ` 1,12,400 on this count. 10. The documents produced by the claimant shows that she was laid up for 3 ½ years. The claimant produced bills worth ` 85,000. But, the Tribunal awarded only ` 5,012 for treatment expenses. No reason is stated by the Tribunal for not accepting the bills Ext.A13 series. Therefore the claimant is entitled to an additional compensation of ` 79,988 on this count. 11. The Tribunal awarded ` 15,000 for pain and suffering endured by the claimant and `10,000 for loss of amenities and enjoyment in life. Taking into consideration MACA 1207/2005 6 the nature of the injuries sustained by the claimant, we feel that a compensation of ` 30,000 for pain and suffering and ` 25,000 for loss of amenities and enjoyment in life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of `2,22,388/- with interest @ 7.5% per annum from the date of petition till realization and proportionate costs. The third 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 MACA 1207/2005 7