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. 628 of 2004() ---------------------- OPMV.515/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- ELSY ANTONY, W/O. ANTONY, EDASSERY HOUSE, KIDANGOOR P.O., ANGAMALY. BY ADV. SRI.JOSE THETTAYIL RESPONDENT(S): RESPONDENTS ---------------------------------------------- 1. MRS.MOLLY SKARIA, CHUNGATH HOUSE, VATAKKAD, MOOKKANOOR 2. ACHUTHAN, S/O. KURUMBAN, KANNAMKULAM HOUSE, KEEZHPARIYARAM, NEDUMBASSERY VILLAGE. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, JASMINE BUILDING, XII/349, A.M.ROAOD, PERUMBAVOOR. 4. K.J.XAVIER, KACHERI HOUSE, KUNJITHAI P.O., N.PARUR, VADAKKEKARA, ERNAKULAM. 5. THE ORIENTAL INSURANCE CO.LTD., DIVI.OFFICE SHAN COMPLEX, 1ST FLOOR, BAZAR ROAD MATTANCHERRY, COCHIN-2. ADV. SRI.P.SANKARANKUTTY NAIR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pkk A.K. BASHEER & P.Q. BARKATH ALI, JJ. --------------------------------------------------- M.A.C.A No. 628 OF 2004 ---------------------------------- DATED THIS THE 5TH DAY OF OCTOBER, 2010 JUDGMENT ---------------- Barkath Ali, J. The appellant is the claimant in OP(MV) No. 515/1997 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. She sustained the following injuries in a motor accident that occurred on December 03, 1996 at Vengoor near Angamaly. “lacerated wound 3x1 cm on left eye brow, lacerated wound 4 x 1 cm right eyebrow bleeding both nostrils,2 x 1 cm lacerated wound lower lip, 2 x 1 cm and 3x1 cm sized two lacerated wounds over right cheek, 6x1 cm lacerated wound over occipital, 3x2 cm lacerated wound shin of right tibia with swelling over it, puncture wound over upper 3rd of anterior aspect of left leg, suspected fracture both bones both legs, loss of two teeth on the upper portion, fracture right zygoma, transverse fracture with butterfly fragments of both bones of right leg at the junction of upper 3rd and mid 3rd, transverse fracture both bones M/3rd of shaft of left leg.” M.A.C.A No. 628 OF 2004 2 2. The accident happened while she was travelling in a bus bearing registration No. KBE-2647 from Kalady to Angamaly which was driven by the 2nd respondent. When the bus reached at Vengoor, it collided head on with another bus bearing registration No. KL-7E-8150. Alleging negligence against drivers of both the vehicles, the claimant filed O.P before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 3,02,000/-. 3. Respondents 1 to 3 are the owner, driver and insurer of the bus bearing registration No. KBE 2647 in which the claimant was travelling. Respondents 4 and 5 are the owner and insurer of the other bus. Respondents 1,2 and 4 remained absent before the Tribunal. Respondents 3 and 5, the insurers of the respective buses filed separate written statements admitting the accident but attributed negligence to the driver of the other bus. The 3rd respondent admitted the policy in respect of the vehicle bearing M.A.C.A No. 628 OF 2004 3 No. KBE-2647. 4. This O.P was tried along with another O.P filed by another injured person in the accident and a common award was passed. PWs 1 to 4 were examined and Exts. A1 to A22 were marked on the side of the claimant. No evidence was adduced by the contesting respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent, the driver of the bus bearing registration No. KBE-2647, the vehicle in which the claimant was travelling and awarded a compensation of Rs. 1,48,500/- with interest at the rate of 9% per annum from the date of petition till realization. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant and the counsel for the Insurance Companies. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd M.A.C.A No. 628 OF 2004 4 respondent, the driver of the offending bus 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 Tribunal awarded a total compensation of Rs. 1,48,500/-. The break up of the compensation awarded is as under: Pain and suffering : Rs.25000 Loss of earnings : Rs.9000 Damage to clothings : Rs.300 Transportation expenses : Rs.1350 Medical expenses : Rs.67050 Extra nourishment and : Rs.5000 bystander expenses Loss of earning power : Rs.28800 (for disability caused) Loss of amenities : Rs.12000 8. The counsel for the claimant sought enhancement of the compensation awarded by the Tribunal for the disability caused, for pain and suffering, for loss of enjoyment and life and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs. 1500/- and took the percentage of disability as 10% and adopted a multiplier of 16 and awarded a compensation of Rs. 28,800 /-for M.A.C.A No. 628 OF 2004 5 the disability caused. According to the claimant, he was a construction worker earning to Rs. 2,000/- per month. As no evidence was adduced by the claimant to prove the occupation or income and as the accident was in the year 1996, the Tribunal is perfectly justified in taking the monthly income of the claimant as Rs. 1500/- . As regards the disability caused the Doctor has certified 22% of the disability in Ext.A15. He was examined as PW3 before the Tribunal and he detailed the disability caused in Ext.A15 as follows: “ the petitioner has complaints of pain both knee difficulty in walking long distance and squatting and sitting cross leg and also a scar vertically about 30 cm. long over right leg below knee, a scar vertically about 16 cm. long over right left leg below knee, tender right leg middle region, secondary osteoarthritis both knees, chronic synovitis both ankles and thereby the petitioner has a permanent partial disability of 22%.” Taking into consideration all the above aspects, we feel that the percentage of disability caused to the claimant can be reasonably fixed at 15%. The multiplier 16 adopted by the Tribunal is not seriously challenged in this appeal. Thus calculated M.A.C.A No. 628 OF 2004 6 for the disability caused the claimant is entitled to a compensation of Rs. 43,200/-. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 14,400/-. 10. The Tribunal awarded Rs. 25,000/- for the pain and suffering endured. Two teeth of the claimant were lost. Therefore we feel that an additional compensation of Rs. 10,000/- would be reasonable for pain and suffering endured. 11. The Tribunal awarded a compensation of Rs. 12,000/- for loss of amenities and enjoyment of life. Taking into consideration the nature of injuries sustained, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. As regards, the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. Thus, the claimant is entitled to an additional compensation of Rs.32,400/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realization and proportionate cost. The 3rd respondent, being the insurer of the offending vehicle M.A.C.A No. 628 OF 2004 7 shall deposit the amount before the Tribunal within two months from the date of receipt of 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 PKK