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 20TH MAY 2010 / 30TH VAISAKHA 1932 MACA.No. 1499 of 2004() ----------------------- OPMV.478/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/APPLICANT :- ------------------------------------- R.SASIDHARAN NAIR S/O. RAGHAVAN, HOUSE NO.57, T.C.72/2515, PONNARA NAGAR, MUTTATHARA, VALLAKADAVU P.O., THIRUVANANTHAPURAM. BY ADV. MR.B.S.SWATHY KUMAR SMT.BINDU SREEKUMAR RESPONDENT(S)/RESPONDENTS :- ---------------------------------------------- 1. MR.N.JAMES ROY, 21 D WATER TANK ROAD, NAGERCOIL, KANNYAKUMARI, TAMIL NADU. 2. THE SENIOR DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., ST.JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM. ADV. MR.BIJU BALAKRISHNAN FOR R1 SMT.SARAH SALVY FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt A.K.BASHEER & P.Q. BARKATH ALI, JJ. =========================== M.A.C.A. No.1499 of 2004 ================= Dated this the 20th day of May 2010 J U D G M E N T Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.478 of 2002 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram challenges the judgment and award of the Tribunal dated October 6, 2003 awarding a compensation of Rs.46,441/- to the claimant 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 45 at the time of the accident and used to earn Rs.4,000/- per month as a driver according to him. On March 9, 2001, the claimant was M.A.C.A. No.1499 of 2004 -2- driving a Maruti Van bearing Registration No.TN 02/A 8969 towards Alappuzha. When he reached at Purakadu at about 5 a.m., a K.S.R.T.C. Super fast bus came at a high speed on the wrong side and to avoid collision with the bus the claimant swered the vehicle to one side as a result of which Maruti Van dashed against a tree on the side of the road. The claimant sustained serious injuries. He has filed this claim petition under section 163 A of Motor Vehicles Act. He has claimed a compensation of Rs.3,00,000/-. 3. The 1st respondent is the owner of the Maruti Van and 2nd respondent is its Insurer. They remained absent and were set ex parte by the Tribunal. 4. The claimant was examined as PW1 and Exts.A1 to A6 were marked on his side. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.46,441/-. The claimant has now come up in appeal M.A.C.A. No.1499 of 2004 -3- challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimant and the learned counsel for the Insurance Company. 6. The accident is not disputed. As the claimant was under section 163 A of Motor Vehicles Act, the question of negligence does not arise in this case. The only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries as revealed from Ext.A3, the copy of the wound certificate and Ext.A2, the referral O.P. card. (1) Type III a comminuted fracture of the supra condylar right femur (2) Fracture of the lateral epicondyle right (3) Fracture of the first metatarsal right (4) Contusion on the wall of the chest (5) Multiple lacerations on right hand, posterior aspect of the right elbow (6) Contusion on the right foot M.A.C.A. No.1499 of 2004 -4- (7) Swelling and abration over the medical aspect of the foot and first toe. Bone grafting was done. 8. He was admitted on 9.3.2001 and was discharged on 17.4.2001 as revealed from Ext.A1, copy of the referral card issued from Medical College Hospital, Thiruvananthapuram. Ext.A4 is the disability certificate issued by the Assistant Professor, Orthopaedic Department. She has assessed that the claimant has suffered the disability of 24%. 9. The Tribunal awarded a total compensation of Rs.46,441/-. The break up of the compensation awarded is as under :- Pain and suffering : Rs.5,000/- Medical expenses : Rs.8,641/- Loss of earnings : Rs.4,000/- For the disability caused : Rs.28,800/- ----------------- Total : Rs.46,441/- ======= 10. The learned counsel for the Claimant sought enhancement of the compensation for the disability caused. M.A.C.A. No.1499 of 2004 -5- The Tribunal took his monthly income as Rs.2,000/- and adopted a multiplier as 12 and took the percentage of disability as 10% and awarded a compensation of Rs.28,800/- for the disability caused. As the claimant was a driver, we feel that his monthly income has been reasonably estimated as Rs.2,500/-. The claimant was aged 45 at the time of the accident, which is not seriously disputed. Therefore, as per the Second Schedule of Motor Vehicles Act, 13 can be adopted as the multiplier. The percentage of disability taken by the Tribunal as 10% is not seriously challenged. Therefore, for the disability caused, the claimant is entitled to a compensation of Rs.39,000/- (2,500x12x13 – 10%). 11. The Tribunal awarded Rs.5,000/- for pain and suffering undergone by the claimant which appears to be very low. Taking into consideration the nature of the injury sustained by him, we feel that a compensation of Rs.10,000/- would be reasonable on this count. As regards M.A.C.A. No.1499 of 2004 -6- the compensation awarded under other heads we find the same to be reasonable and are not disturbing the same. 12. Thus, the claimant is entitled to an additional compensation of Rs.15,200/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 2nd 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 with notice to the claimant. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. jvt