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 12TH APRIL 2011 / 22ND CHAITHRA 1933 MACA.No. 742 of 2004() --------------------- OPMV.324/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANTS/CLAIMANTS -------------------------------------- 1. RAJENDRAN NAIR, T.C.42/343, SIVADEEPAM PARAMBIL NAGAR, SREEVARAHAM WARD, MUTTATHARA, THIRUVANANTHAPURAM. 2. PURUSHOTHAMAN NAIR, T.C.42/343, SIVADEEPAM PARAMBIL NAGAR, SREEVARAHAM WARD, MUTTATHARA, THIRUVANANTHAPURAM. 3. ANIL KUMAR, T.C.42/343, SIVADEEPAM PARAMBIL NAGAR, SREEVARAHAM WARD, MUTTATHARA, THIRUVANANTHAPURAM. 4. RADHAMMA, T.C.42/343, SIVADEEPAM PARAMBIL NAGAR, SREEVARAHAM WARD, MUTTATHARA, THIRUVANANTHAPURAM. BY ADV. SRI.S.B.JAYACHANDRAN RESPONDENT/DEFENDANTS ------------------------------------------ 1. VIKRAMAN S/O.SADASIVAN, SARADA MANDIRAM, VELLAR KOVALAM P.O., THIRUVANANTHAPURAM. MACA No.742/2004 -2- 2. MANIYAN, S/O.KRISHNAN, MANALUVILA VEEDU, NEAR VELLAR JUNCTION, THIRUVALLAM VILLAGE, 7TH WARD, THIRUVALLAM, THIRUVANANTHAPURAM. 3. DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH 1, 26/1436, GOVT. PRESS ROAD, THIRUVANANTHAPURAM. R3 BY ADV. SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.742 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of April, 2011 JUDGMENT Barkath Ali, J. Appellants are the claimants 2 to 5 in O.P.(MV) No.324/1999 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. They are the children of deceased 1st claimant who died during the pendency of the OP. In this appeal they challenge the judgment and award of the Tribunal dated September 15, 2003 awarding a compensation of Rs.85,800/- for the loss caused to them on account of injuries sustained by the deceased first claimant in that accident. 2. The deceased 1st claimant was aged 55 at the time of accident and was the proprietor of Siva Saw Mill in Pettah, Thiruvananthapuram earning Rs.3,500/- per month. The accident happened on October 31, 1998 at about 6.30 p.m. While he was cycling along with East Fort-Eehchakkal road near Hotel Highness, he was knocked down by a mini lorry bearing registration No.KL-01-M 1530. He sustained MACA No.742/2004 -2- serious injuries. Alleging negligence against the driver of the mini lorry, the second respondent deceased 1st claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs. 3,00,000/-. 3. Only the 3rd respondent, insurer of the offending lorry contested the matter. 3rd respondent in the written statement admitted the policy, but attributed negligence to the deceased 1st claimant. 4. Exhibits A1 to A7 were marked on the side of the 1st claimant before the Tribunal. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the second respondent, the driver of the offending lorry and awarded a compensation of Rs. 85,800/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The additional claimants 2 to 5 have now come up in appeal challenging the quantum of compensation awarded by the MACA No.742/2004 -3- Tribunal. 5. Heard the counsel for the appellants 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 second respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 7. The deceased 1st claimant sustained the following injuries in the accident. (i) Crush injury on the right forearm. (ii) Nerves were crushed and there was compound fracture of the right olecranon. (iii) Extensive abrasion on the interior aspect of the abdomen. (iv) Amputation of right hand above the elbow. (v) Crushing injury on the gluteal right thigh and there was infected wound on the scrotum. The certificate of disability, Ext.A5 shows that he has disability of 45%. About 3 ½ years after the accident the 1st claimant died. MACA No.742/2004 -4- 8. The Tribunal awarded a total compensation of Rs.85,800/-. The break up of the compensation awarded by the Tribunal is as under : Loss of earning - Rs. 6,000/- Medical and incidental expenses - Rs. 3,000/- Transport to hospital - Rs. 1,000/- Bystander expense - Rs. 1,500/- Extra nourishment - Rs. 1,000/- Damage to clothing - Rs. 500/- Pain and suffering - Rs.20,000/- Permanent partial disability - Rs.37,800/- Loss of amenities and inconvenience - Rs.15,000/- ----------------- Total Rs.85,800/- ======= 9. Counsel for the claimants sought enhancement of compensation for the disability caused and on other heads. 10. The Tribunal took the monthly income of the deceased as Rs.2,000/- and adopted a Multiplier of 3.5 as he died 3 ½ years after the accident and took percentage of disability as 45% as in Ext.A5 and awarded Rs.37,800/- for the disability caused. The deceased 1st claimant was aged 55 at the time of the accident and was the proprietor of Siva Saw Mill, Pettah Thiruvananthapuram according to the MACA No.742/2004 -5- claimants. In the absence of any evidence on this aspect the Tribunal took the monthly income as Rs.2,000/- which comes to Rs.24,000/- per annum which appears reasonable. The Tribunal took the Multiplier as 3.5 as the claimant died 3 ½ years after the accident. As deceased 1st claimant was aged 55 at the time of accident we feel that the multiplier of 7 can be reasonably fixed in this case. The percentage of disability as 45% adopted by the Tribunal appears reasonable as the right hand of the deceased claimant was amputated. Thus calculated for the disability caused to the deceased first claimant appellants are entitled to a compensation of Rs.75,600/- (24,000 x 7 x 45%). Therefore, on this count appellants are entitled to an additional compensation of Rs.37,800/-. 11. The Tribunal awarded Rs.20,000/- for pain and suffering and Rs.15,000/- for loss of amenities and enjoyment in life. Taking into consideration the fact that his right hand was amputated we feel that an additional compensation of 15,000/- for pain and suffering endured by MACA No.742/2004 -6- the claimant and an additional compensation of Rs.10,000/- for loss of amenities and enjoyment in life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12 In the result, the appellants are found entitled to an additional compensation of Rs. 62,800/- with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. 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. The Appeal is disposed of as found above. Sd/- A.K. BASHEER, JUDGE. Sd/- P.Q. BARKATH ALI, JUDGE. AMG True copy P.A. to Judge