IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 MACA.No. 1476 of 2007() ----------------------- OPMV.35/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER ---------------------------------- ABDUL KARIM, S/O KUNJUMUHAMMED, PUTHUPARAMBIL HOUSE, THOTTUMKARA BHAGOM, MUTTOM VILLAGE. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENT(S): RESPONDENTS -------------------------- 1. PRAKASH, S/O.CHANDRADAS, CHOLAMATTATHIL HOUSE, KANNADIPPARA BHAGOM, MUTTOM KARA, MUTTOM VILLAGE. 2. RAJESH, S/O.MOHANAN, ONAMPALLIYIL HOUSE, 282/6, PAMPADUMPARA, THOOKKUPALAM. 3. UNITED INDIA INSURANCE CO.LTD., REP.BY ITS DIVISIONAL MANAGER, MUVATTUPUZHA. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1476 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.35/2004 of Motor Accidents Claims Tribunal, Thodupuzha challenges the judgment and award of the Tribunal awarding a compensation of Rs. 1,16,000/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was aged 38 at the time of the accident and was earning Rs. 5,000/- per month as a fishmonger, according to him. On January 18, 2003, the claimant was travelling in his M.80 scooter from Muttom to Thodupuzha. When he reached in front of Malankara Rubber Factory, an auto rickshaw bearing Reg.No.KL-7/AF-3666 came at a high speed from the opposite side and dashed against his scooter. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending M.A.C.A.No.1476/2007 2 auto rickshaw by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending auto rickshaw are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the driver and owner of the offending auto rickshaw remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending auto rickshaw filed a written statement admitting the policy and further contending that the accident occurred due to the negligence on the part of the claimant. 4. This O.P. was jointly tried along with the other O.P.s. filed by the injured passengers of the auto rickshaw and also the driver of the auto rickshaw and a common award was passed. PWs 1 to 3 were examined and Exts.A1 to A22 were marked on the side of the claimant before the Tribunal. The Tribunal on an appreciation of evidence assessed a compensation of Rs. 2,31,985/- and found that the claimant is also responsible for the accident and awarded a compensation of Rs. 1,16,000/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. M.A.C.A.No.1476/2007 3 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The appellant/claimant claimed enhancement of compensation as well as challenged the finding of the Tribunal that the accident occurred due to the negligence on the part of both the drivers including the claimant. Therefore, the following points arise for consideration : 1) Whether the finding of the Tribunal that the claimant is also contributed to the accident can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation ? Point No.1 7. The Tribunal taking into consideration the evidence of PW1, a passenger in the auto rickshaw and perusing the criminal case records Ext.X1 found that the accident occurred due to the negligence on the part of both the drivers. On going through the judgment, we find no reason to come to a different conclusion. Therefore, we M.A.C.A.No.1476/2007 4 confirm the finding of the Tribunal that both the drivers are equally responsible for the accident. Point No.2 8. The claimant sustained the following injuries as revealed from Ext.A7, the wound certificate issued from the hospital : 1. Lacerated wound 2 x 1 cm. over the central aspect of right wrist. 2. Lacerated wound 8 x 2 x 1 cm. over the lower aspect of right shirt. 3. Laceration over left knee. 4. Multiple abrasions over the chest and neck. 5. Swelling over left inguinal region. 6. Lacerated wound 6x2x1 cm. over the shin region. 7. Lacerated wound 5 x 2 x 1 cm. over the right supra orbital region. 8. Lacerated wound 2 x 1 cm. over the right side of naso labial triangle extending to right nostril. 9. Laceration wound 2 x 1 cm. on the submentol region. M.A.C.A.No.1476/2007 5 10. Multiple laceration of skull with fracture of right lateral wall of orbit. 11. Fracture of lateral wall of maxillary sinus and fracture of ethmoid bones. 12. Compound fracture of distal radius. 13. Type II compound fracture of both bones of right leg. 9. Ext.A8 is the discharge summary issued from the Medical Mission Hospital, Kollencherry. Open reduction and internal fixation of distal radius and external fixactor application on the right leg were done. Intestinal perforation with haemoperitoneum was closed and resection and anastomosis was done. Ext.A11 the certificate of disability issued by the Medical Board shows that he has 27% disability on the ground of wasting of left forearm muscles with weakness of left forearm, limitation of all movements of the left wrist at the terminal level, non-union of fibula, deformity of right leg with lateral angulation arthritis of right ankle, wasting of right leg muscles and chronic osteo myletis of right tibia. 10. The Tribunal assessed a total compensation of Rs.2,32,000/-. The break up of the compensation assessed is as under : M.A.C.A.No.1476/2007 6 Loss of earning - Rs. 16,000/- Transportation expenses -Rs. 4,000/- Extra nourishment - Rs. 3,000/- Bye-stander expenses - Rs. 4,000/- Treatment expenses - Rs. 83,335/- Pain and suffering - Rs. 40,000/- Disability - Rs. 81,600/- -------------- Total - Rs.2,31,935/- Rounded off to - Rs. 2,32,000/- =========== 11. Counsel for the appellant/claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 12. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and adopted a multiplier of 17 and took the disability as 20% and assessed a compensation of Rs. 81,600/- for the disability caused. The claimant is admittedly a fishmonger. Therefore, we feel that his monthly income can be reasonably estimated at Rs. 2,500/-. The percentage of disability assessed by the Tribunal as well as the multiplier adopted is not seriously challenged. Thus calculated for the M.A.C.A.No.1476/2007 7 disability caused, the compensation works out to Rs. 1,02,000/-. Thus on this count, additional compensation comes to Rs. 20,400/-. 13. For the loss of amenities and enjoyment of life, no compensation was awarded by the Tribunal. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs.10,000/- would be reasonable for the loss of amenities and enjoyment of life. 14. Thus, the additional compensation works out to Rs.30,400/-. As the claimant is also responsible for the accident, he is entitled to only half of the said amount which comes to Rs. 15,200/-. 15. In the result, the appellant/claimant is entitled to an additional compensation of Rs.15,200/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. For the compensation already awarded also, he is entitled to interest at the same rate. 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. M.A.C.A.No.1476/2007 8 The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. M.A.C.A.No.1476/2007 9