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 14TH JUNE 2010 / 24TH JYAISTHA 1932 MACA.No. 1258 of 2004() ----------------------- OPMV.1145/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: ----------------------------------- NIZAMMUDDIN, AGED 16 YEARS, S/O. ABDUL AZEEZ, PUTHENVELIPARAMB, MOOPATHADAM, REPRESENTED BY FATHER AND GUARDIAN ABDUL AZEEZ, S/O. BEERAN, AGED 44 YEARS, PUTHENVELIPARAMBA, MOOPATHADAM (AS IN THE COURT BELOW). BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): RESPONDENTS: --------------------------- 1. K.K.ASOKAN, KAYYALAPARAMB HOUSE, ALANGAD P.O., KODUNGALLOOR. 2. PAUL K.J. @ JOSHI, S/O. K.P. JOSEPH, KOOTHALA HOUSE, PANAYIKULAM KARA, ALANGAD P.O. 3. NEW INDIA ASSURANCE CO. LTD., P.O. BOX NO.108, XIV/76-G, KODUVATH SHIPPING COMPLEX, SUB JAIL ROAD, ALUVA-683 101. ADV. SRI.SAJI MATHEW FOR R2 SRI.DENU JOSEPH FOR R2 SMT.RAJI T.BHASKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION 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. 1258 of 2004 ------------------------------------------------------ Dated: JUNE 14, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1145/1999 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, challenges the judgment and award of the Tribunal, dated, February 28, 2004 awarding a compensation of Rs.2,58,850/- for the loss caused to the claimant 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 a boy aged 11 at the time of the accident. On July 20, 1999 at about 4.15 p.m. while the claimant was walking along the Vattappully Kadavu bridge on the Karipuzha Masjid road at Panayikulam, he was knocked down by a tempo van bearing registration No.KEZ 1121 driven by the 2nd respondent. The claimant sustained serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 2nd respondent. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending van are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.8 lakhs. M.A.C.A. 1258 of 2004 2 3. Respondents 1 and 2, the owner and the driver of the offending van remained absent and were set ex parte by the Tribunal. The 3rd respondent, insurer of the offending van, filed a written statement admitting the policy. 4. The doctor who issued Ext.A3, the disability certificate, was examined as PW.1 and Exts.A1 to A5 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.2,58,850/- with interest at 9% per annum from the date of petition till realisation. 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 2nd 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 the following injuries and underwent M.A.C.A. 1258 of 2004 3 the following treatment as revealed from Ext.A2, certificate issued from the Medical Trust Hospital, Kochi. “fracture left 8th and 9th ribs with haemothorax, and right humerus fracture and left lower limb both bone fracture of the leg, ultrasound study of abdomen showed moderate amount of free fluid. Emergency exploratory laprotomy was done which showed (1) a shattered left kidney (2) large left diaphragmatic tear (3) rupture spleen (4) he also had partial rupture of urethra. A left neprectomy, splenectomy and left diaphragmatic tear repair done. Urethral injury was managed by urologist with initial suprapubic cystotomy and later per urethral catheeterisation, left 8th and 9th ribs fracture were managed by ICD right humerus fracture and left lower limb both bone fracture of the leg were managed by orthopaedicians.” The claimant suffered disability of 40% as revealed from Ext.A3 certificate of disability issued by the District Medical Officer, Ernakulam. 8. The Tribunal awarded a total compensation of Rs.2,58,850/-. The break up of the compensation awarded is as under:- pain and suffering - Rs.50,000/- damage to clothings - 300/- transportation - 2,000/- medical expenses - 53,550/- extra nourishment and bystander's expenses - 5,000/- M.A.C.A. 1258 of 2004 4 loss of earning power - 1,08,000/- loss of amenities - 30,000/- disfiguration - 10,000/- 9. The Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused and on other heads. The claimant was a boy aged 11 at the time of the accident. The Tribunal took the income of the claimant as Rs.1500/- per month, took his disability as 40% as mentioned in Ext.A3 and adopted a multiplier of 15 and awarded Rs.1,08,000/- for the disability caused. PW.1, the doctor who issued Ext.A3 disability certificate, testified that taking into consideration the nature of the injuries sustained by the claimant, he has suffered a permanent partial disability of 55%. The claimant has suffered loss of left kidney, loss of spleen, extensive disfigurement, scarring on abdomen and diminished range of motion of right shoulder, fracture of 8th and 9th left thoracic ribs with haemothorax, ruptures of left kidney and spleen diaphragmatic tear, urethral rupture, fracture right humerus and fracture both bones left leg. Taking into consideration the nature of the injuries sustained by the claimant, we feel that the percentage of disability of the claimant can be fixed as 55% as testified by PW.1. The monthly income of the claimant can be reasonably fixed at Rs.2000/-. The Tribunal adopted a multiplier of M.A.C.A. 1258 of 2004 5 15. But the claimant was aged only 11 at the time of the accident. Therefore the multiplier of 17 would be reasonable. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.2,24,400/- (24000 x 17 x 55%). As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 10. Thus the claimant is entitled to an additional compensation of Rs.1,16,400/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 3rd 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 mt/-