IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 MACA.No. 770 of 2005() ---------------------- OPMV.1007/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ------------------------ K.R.GEORGE, S/O.KOCHAPPAN, KARINJAN HOUSE, EDAKURI VILLAGE, THALORE, THRISSUR. BY ADV. SRI.K.A.SREEJITH RESPONDENTS/RESPONDENTS --------------- 1. SREENIVASAN, S/O.SANKARAN, KOCHAT HOUSE, VENGINISSERY, P.O.PARALAM, THRISSUR. 2. THILAKAN, S/O.SANKARAN, DO.DO. 3. THE ORIENTAL INSURANCE COMPANY LTD., THIRUVAMBADY BUILDING, ROUND WEST, THRISSUR. 4. M.V.GOPI, MUNDANATT HOUSE, VENGINISSERY, THRISSUR. ADV. SRI.DILIP J. AKKARA FOR R2 SRI.VPK.PANICKER SRI.T.GOPALAKRISHNAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.770 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1007/1995 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated August 28,2003 awarding a compensation of Rs.37,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on January 25, 1995 at about 8.30.p.m. : 1. Epistaxis. 2. Lacerated wound occipital area of scalp. 3. Fracture scalp. 4. Punctured wound at left leg. 5. Contusion right lower chest. 6. Crack fracture of medial malleolus, right tibia. 2. The accident happened while the claimant was walking along the side of the road and when he reached at Ammadam, he was knocked down by the motor cycle bearing Reg.No.KL8-B-4196 ridden by the second respondent. Alleging negligence against the second MACA.No.770/2005 2 respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,90,000/-. 3. Respondents 1 to 3 are the owner, rider and insurer of the offending motor cycle. The fourth respondent, the registered owner was subsequently impleaded in the O.P. Respondents 1 and 2 filed written statements admitting the policy, but attributed negligence to the claimant. The third respondent, the insurer of the offending motor cycle filed a written statement admitting the policy. The fourth respondent remained absent before the Tribunal. 4. PW1 was examined and Exts.A1 to A8 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent riding of the offending motor cycle by second respondent and awarded a compensation of Rs. 37,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation MACA.No.770/2005 3 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 second 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 Tribunal awarded a total compensation of Rs.37,000/-. The break up of the compensation amount awarded is as under: Loss of earnings - Rs. 9,000/- Transportation - Rs. 1,000/- Medical expenses - Rs. 8,000/- Bystander expenses - Rs. 500/- Disability - Rs.13,500/- Pain and suffering - Rs. 3,000/- Loss of amenities - Rs. 2,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment in life. 9. The Tribunal took the monthly income of the claimant as MACA.No.770/2005 4 Rs.1,500/- and took the percentage of disability as 5% and adopted a multiplier of 15 as the claimant was aged 41 and awarded Rs. 13,500/- for the disability caused. According to the claimant, he was working as carpenter and was earning Rs. 3,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,000/-. The percentage of disability taken by the Tribunal as 5% appears to be very low. In Ext.A5 Certificate the Neuro Surgeon has assessed the disability of the claimant at 15%. Taking into consideration the disabilities caused to the claimant, we feel that 15% disability assessed by the doctor can be accepted. The multiplier of 15 taken by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 54,000/- ( 15% x 2000 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs.40,500/-. 10. The Tribunal awarded Rs.2,000/- for loss of amenities and enjoyment in life and Rs.3,000/- for pain and suffering endured by the claimant. Taking into consideration the nature of the injuries sustained MACA.No.770/2005 5 by the claimant, we feel that a compensation of Rs. 10,000/- each for loss of amenities and enjoyment in life and pain and suffering endured would be reasonable. 11. The Tribunal awarded Rs. 9,000/- towards loss of earnings for 6 months @ Rs. 1,500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,000/-, he is entitled to a compensation of Rs. 12,000/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 3,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. There is another aspect in this case. There is a delay of 440 days in filing the appeal. Therefore, the claimant will not be entitled to interest for the said period of delay. 13. In the result, the claimant is entitled to an additional compensation of Rs.58,500/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant will not be entitled to interest for the period of delay i.e. 440 days in filing the appeal. The third respondent being the insurer MACA.No.770/2005 6 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 sv. MACA.No.770/2005 7