IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 MACA.No. 1351 of 2007() ----------------------- OPMV.73/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/ADDITIONAL PETITIONERS IN OP(MV) --------------------------------------------------------- 1. ROSILY WILSON, W/O.LATE WILSON, AINIKKAL HOUSE, RESIDING AT THALORE DESOM, THRIKKOOR VILLAGE, THALORE P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. ROSEMY WILSON.A., D/O.LATE WILSON, AINIKKAL HOUSE, RESIDING AT THALORE DESOM, THRIKKOOR VILLAGE, THALORE P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. RESMY WILSON.A (MINOR), AGED 17 YEARS, D/O.LATE WILSON, REPRESENTED BY HER GUARDIAN MOTHER ROSILY WILSON, AINIKKAL HOUSE, RESIDING AT THALORE DESOM, THRIKKOOR VILLAGE, THALORE P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. THRESSIAKUTTY, M/O. LATE WILSON, AINIKKAL HOUSE, RESIDING AT THALORE DESOM, THRIKKOOR VILLAGE, THALORE P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------ 1. M/S.SHIV KESHAV TRANSPORT NO.47, DOWN BAZAR ROAD, YELAHANKA, BANGALORE - 560 064. 2. GANGAPPA, S/O.CHIKKARAMAIAH, DOOR NO.51, KRISHNARAJAPURAM III, MAIN ROAD, BANGALORE. 3. MANAGER, NEW INDIA ASSURANCE CO.LTD., 206 & 207, CHENOY TRADE CENTRE, PARKLANE, SECUNDARABAD - 500 003. ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1351 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of October, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants 2 to 5 in O.P.(MV)No.73/2001 on the file of Motor Accidents Claims Tribunal, Irinjalakkuda. They are the wife, children and mother of deceased first claimant who died during the pendency of the O.P. Deceased first claimant sustained the following injuries in a motor accident that occurred on November 11, 2000 at about 6.20 a.m. at Iikkanda Warrier road junction at Thrissur : Fracture right clavicle, Fracture 2nd, 3rd, 4th, 5th and 6th right ribs and lacerated wound left wrist, both calcuaneum and elbow. 2. The accident happened while the deceased first claimant was riding his motor cycle bearing Reg.No.KL-8/M 7885 along Thrissur-Ikkanda Warrier road with his son Rosewill Wilson as the pillion rider. When they reached near Ikkanda Warrier junction, a lorry bearing Reg.No.KL-04/A 2389 driven by the second respondent came at a high speed and knocked them down. Deceased first claimant MACA.No.1351/2007 2 sustained injuries in the accident and his son Rosewill Wilson died as the result of the injuries sustained in the accident. Deceased first claimant filed the O.P. before the Tribunal alleging negligence against the second respondent claiming a compensation of Rs. 2,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy of the lorry, but denied the liability. 4. This O.P. was tried along with the other O.P. filed by the legal representatives of deceased Rosewill Wilson and a common award was passed. PW1 was examined and Exts.A1 to A26 were marked on the side of the claimants before the Tribunal. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the second respondent and awarded a total compensation of Rs.42,006/- with interest at the rate of 7% per annum from the date of petition till realisation. The claimant 2 to 5 have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.1351/2007 3 5. Heard counsel for the appellants/claimants 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 driver of the lorry is not challenged in this appeal. Therefore the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 7. The Tribunal awarded a total compensation of Rs.42,006/-. The break up of the compensation amount awarded is as under: Extra nourishment - Rs. 1,500/- Medical bills - Rs. 12,806/- Transportation exp. - Rs. 300/- Loss of earnings - Rs. 7,500/- Pain and suffering - Rs. 10,000/- Loss of amenities & happiness in life - Rs. 3,000/- Disability - Rs. 7,200/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment in life. 9. The Tribunal took the monthly income of the first claimant as Rs. 2,500/-, took the percentage of disability as 6% and adopted a MACA.No.1351/2007 4 multiplier of 4 and awarded Rs. 7,200/- for the permanent disability caused. Deceased first claimant was conducting a saw mill earning earning Rs.5,000/- per month, according to the claimants. Taking into consideration the above aspect, we feel that the monthly income of the deceased first claimant can be reasonably fixed at Rs. 4,000/-. Ext.A16, the certificate of disability issued by the doctor shows that first claimant has suffered a permanent disability of 15%. Taking into consideration the nature of the injuries sustained by the deceased first claimant and the disabilities caused to him as detailed in Ext.A15, we feel that his percentage of disability can be assessed at 10%. As the deceased first claimant died about 4 ½ years after the accident, the multiplier of 4 adopted by the Tribunal appears reasonable. Thus calculated, for the disability caused to the deceased first claimant, the appellants/claimants are entitled to a compensation of Rs. 19,200/- ( 10% x 4000 x 12 x 4). 10. The Tribunal awarded Rs. 10,000/- for the pain and suffering endured by the deceased first claimant and Rs. 3,000/- for loss of amenities and enjoyment in life which appears to be very low. MACA.No.1351/2007 5 Taking into consideration the nature of the injury sustained by the deceased first claimant and the fact that he subsequently died, we feel that a compensation of Rs. 20,000/- for pain and suffering endured and Rs. 20,000/- for loss of amenities and enjoyment in life and shortened expectation of 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. 11. In the result, the appellants/claimants are found entitled to an additional compensation of Rs. 39,000/-. They are entitled to interest @ 7% per annum from the date of petition till realisation 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. 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.1351/2007 6 MACA.No.1351/2007 7