IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 MACA.No. 205 of 2006() ---------------------- OPMV.687/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/PETITIONER -------------------------- JOY, S/O.ITTIRA, PALAPARAMBIL HOUSE, P.O.KOTAPURAM, KODUNGALLUR-680 667. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENTS/RESPONDENTS: ----------------------------------- 1. R.MADHU, S/O.RAMAKRISHNA PANIKER, SANDHYA FLAMES, ARAMULA P.O. 2. SAJI.K.R., S/O.RAMACHANDRAN, KANAKKENCHERIL HOUSE, MANCOD, MUVATTUPUZHA P.O. (DELETED) 3. THE NEW INDIA ASSURANCE CO.LTD., CHANGAYIL BUILDING, COLLEGE ROAD, PATHANAMTHITTA-689 645. (RESPONDENTS 4 TO 10 ARE NOT MADE PARTIES IN THIS APPEAL SINCE NO RELIEFS IS CLAIMED AGAINST THEM). (R2 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 6.8.2009 ON I.A. 1991/2009 (AT THE RISK OF THE PETITIONER) ADV. SRI.N.S.MOHAMMED USMAN FOR R3 SRI.IYPE JOSEPH FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 205 OF 2006 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF DECEMBER, 2009. J U D G M E N T Ramachandra Menon, J. The appellant sustained serious injuries on 26.10.1999, in the mid night when the tempo van bearing No. KL-8/A 1441 in which he was travelling along with the goods carried therein (banana) collided with the lorry bearing No.KL-8/E 4005 which was coming from the opposite direction. The claim petition was filed mainly attributing negligence on the part of the driver of the lorry, though all the parties concerned in respect of both the vehicles were included in the party array. 2. The evidence in the case consists of the oral testimony of the appellant /claimant, examined as PW.1 and the documents produced and marked as Exts. A1 to A9 adduced from the part of the claimant; whereas the respondent did not choose to adduce any evidence, except for producing a copy of the policy as Ext. B1. The vehicles were insured by the respondents 3 and 6 Insurance Companies, who were permitted to have wider defence under Section 170 of the Motor MACA 205/2006 2 Vehicles Act. On conclusion of the trial, the Tribunal arrived at a finding that the accident occurred because of the negligence solely attributable to the driver of the lorry. 3. With regard to the quantum of compensation in respect of the injuries sustained, the specific case of the appellant/claimant was that he was a wholesale dealer of banana and that the accident occurred when he was accompanying the goods carried in the vehicle, which by itself speaks about the nature of avocation of the injured and the probable income which was stated as Rs. 10,000/- per month. However, observing that no better evidence was adduced from the part of the claimant in this regard, only a notional sum of Rs. 2,000/- was fixed by the Tribunal, as the monthly income. Taking note of the seriousness of the injuries sustained and also the probable period of rest for nearly four months, the Tribunal awarded a sum of Rs. 8,000/- towards loss of earning, simultaneously awarding further amounts under different heads, such as Rs. 1,000/- towards transportation expenses, Rs. 1,000/- towards extra nourishment, Rs. 500/- towards damages to clothing and articles, Rs. 23,200/- towards medical expenses, Rs. 2,000/- as expense for personal attendants, Rs. 5,000/- towards future medical expenses, Rs. 15,000/- towards pain and suffering MACA 205/2006 3 etc. With regard to the permanent disability stated as suffered by the claimant and certified to an extent of 15% as per Ext.A8, the Tribunal observed that the claimant had not chosen to examine the doctor and hence the disability was held as not proved; mainly for the reason that the marking of the said document was subject to further evidence to be adduced. In the said circumstances, the Tribunal chose to reckon only 8% as the permanent disability. Considering the fact that the claimant was aged 46 years and the appropriate multiplier would be 13, a sum of Rs. 24,960/- was awarded as compensation for permanent disability; besides awarding a sum of Rs. 10,000/- towards loss of amenities and enjoyment in life. Thus, a total sum of Rs. 90,660/- was awarded by the Tribunal, which was directed to be satisfied by the third respondent insurer with interest at the rate of 7% per annum, which is sought to be enhanced in the present appeal. 4. Learned counsel for the appellant submits that the Tribunal has not evaluated the actual facts and figures properly and that there is no reason for ignoring the avocation and monthly income of the injured/claimant as claimed in the claim petition. The learned counsel appearing for the Insurance Company seeks to sustain the Award stating that, in the absence MACA 205/2006 4 of better evidence, the Tribunal was perfectly within the four walls of law in having fixed the multiplier and multiplicand, reckoning the monthly income at a notional level of Rs. 2,000/-. True, the claimant, besides examining himself as PW.1, no further evidence was adduced to substantiate his income or avocation. But the fact remains that the accident occurred when the claimant was proceeding in the tempo van accompanying the banana carried in the vehicle, which was purchased by him during the course of his business. This by itself suggests that there is some force in the submission made by the learned counsel for the appellant as to the avocation and income of the injured. Considering the totality of the circumstances, we find it fit and proper to have the monthly income re- fixed at a notional level of Rs. 3,000/- instead of rs. 2,000/- as now fixed by the Tribunal. the appellant/claimant has sustained serious injuries as taken note of by the Tribunal in paragraphs 10 and 11 of the Award. Taking note of the serious consequences resulted, we find it fit and proper to raise the permanent disability by 2%, thus re-fixing the same as 10% instead of 8%. On re-working the compensation as above, it is found that the appellant is entitled to get a total compensation of Rs. 46,800/- towards the permanent disability. After giving credit to the sum of Rs.24,960/- awarded by the MACA 205/2006 5 Tribunal, the appellant is entitled to get the balance amount of Rs. 21,840/- under this head. 5. The Tribunal has awarded only a sum of Rs. 8,000/- towards loss of earning for 'four' months, at the rate of Rs. 2,000/- per month. Having re-fixed the monthly income as Rs. 3,000/- and considering the fact that the appellant/claimant would have been forced to take rest at least for six months (as he was made to remain in the plater cast for the said period), we find that the appellant is entitled to get a compensation of Rs. 18,000/- (3,000 x 6). Since the Tribunal has awarded only Rs. 8,000/-, the appellant is entitled to get a sum of Rs. 10,000/- as the balance payable under this head. 6. In respect of loss of amenities, the Tribunal has awarded only Rs. 10,000/-. We award a further sum of Rs.5,000/- under this head as well. In the result, the appellant is awarded a further sum of Rs. 36,840/- (Rupees Thirty six thousand eight hundred and forty only) as the balance compensation payable in respect of the injuries and the consequences suffered by him because of the accident, which will carry interest at the rate of 7% per annum from the date of petition till realisation. We direct the third respondent Insurance Company to deposit the said amount as MACA 205/2006 6 expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The appeal is thus allowed in part. No costs. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-