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 14TH JUNE 2010 / 24TH JYAISTHA 1931 MACA.No. 98 of 2004() --------------------- OPMV.1671/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- JAYARAJAN, S/O. RAGHAVAN NAIR, ATHANKAVIL HOUSE, CHOOLISSERY P.O., VIA. MUNDUR, THRISSUR. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. UNITED RUBBER INDUSTRIES LTD., VALIYAPARAMBU, MAMBURAM, MALAPPURAM DISTRICT. 2. THE UNITED INDIA INSURANCE CO.LTD., MALAPPURAM. ADV. SRI.P.JAYASANKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.98 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1671/1994 of Motor Accidents Claims Tribunal, Irinjalakkuda challenges the judgment and award of the Tribunal dated December 12, 2002 awarding a compensation of Rs. 2,27,489/- for the loss caused to him 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 35 at the time of the accident and was employed as a Stenographer in Mazagon Dock Limited in Bombay getting a salary of Rs. 7,500/- per month. On April 20, 1994 at about 9.30 a.m., he was travelling in the KSRTC bus bearing Reg.No.KL- 15/0899 from Thrissur to Ernakulam along National Highway 47. When he bus reached at Nellayi junction, a mini lorry bearing Reg.No.KL-10/B 3283 came at a high speed from the opposite side and MACA.No.98/04 2 dashed against the bus. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending mini lorry are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 11,35,500/-. 3. The driver and the owner of the KSRTC bus were subsequently impleaded as additional respondents 4 and 5. First respondent, the driver of the mini lorry though entered appearance did not file any written statement. Second respondent expired. The third respondent the insurer of the offending mini lorry filed a written statement admitting the policy, but contended that the accident occurred due to the negligence of the driver of the KSRTC bus. Respondents 4 and 5 filed a written statement attributing negligence to the first respondent. 4. Pws 1 to 3 were examined and Exts.A1 to A14 were marked on the side of the claimant before the Tribunal. No evidence MACA.No.98/04 3 was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent and awarded a compensation of Rs. 2,27,489/- (which was mistakenly shown as Rs. 2,35,832/- in the award) 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 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 second 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 Grade I compound fracture of both bones of left leg, lacerated wound 4th, 5th toe right foot as evidenced by Ext.A1(1) discharge summary. Open reduction, internal fixation and MACA.No.98/04 4 bone grafting were done. Subsequently illisarov fixation was done. PW3, the doctor has assessed the disability at 15%. 8. The Tribunal awarded a total compensation of Rs.2,27,489/-. The break up of the compensation awarded is as under : Bystander expenses - Rs. 1500/- Medical expenses - Rs.51,400/- Loss of earning power - Rs. 4,320/- Pain and suffering - Rs. 5,000/- Loss of amenities - Rs. 5,000/- Loss of leave - Rs.1,58,769/- Transportation expenses - Rs. 1500/- 9. Counsel for the claimant sought enhancement of the compensation awarded for the disability caused, loss of earning power, loss of amenities and for pain and suffering endured by the claimant. 10. The Tribunal took the monthly income of the claimant as Rs.1200/- and took the percentage of disability as 6% and adopted a multiplier of 5 and awarded Rs. 4320/- towards the disability caused. Taking into consideration that fact that the claimant was employed as a Stenographer in Mazagon Dock Limited in Bombay, we feel that his monthly income can be reasonably estimated at Rs.2000/-. The percentage of disability assessed by the Tribunal as 6% appears to be MACA.No.98/04 5 reasonable. But the proper multiplier that can be adopted in this case is 8 and not 5 as taken by the Tribunal. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 11,520/-( 6 % x 2000 x 12 x 8). Thus on this count, the claimant is entitled to an additional compensation of Rs. 7,200/-. 11. For the pain and suffering endured by the claimant, the Tribunal awarded a compensation of Rs. 5,000/- which appears to be very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. 12. For the loss of amenities and enjoyment of life, only Rs. 5,000/- was awarded by the Tribunal which is quite inadequate. Having regard to the nature of the injury sustained, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Taking into consideration the totality of the facts and circumstances of the case and as the disability caused to the claimant has not affected his employment, we feel that the compensation awarded by the Tribunal under other heads appears reasonable. MACA.No.98/04 6 In the result, the claimant is found entitled to an additional compensation of Rs. 32,200/-. He is entitled to interest @ 9% 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.98/04 7