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 4TH AUGUST 2010 / 13TH SRAVANA 1932 MFA.No. 492 of 2002() --------------------- OPMV.196/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER IN OP(MV) ---------------------------------- JOY, S/O.POULOSE, PATTAMADI HOUSE, MAMBRA P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS 1 TO 3 IN OP(MV) ------------------------------------------- 1. THAHIRA SALIM, CHAKKUNGAL HOUSE, PAIPRA, MUVATTUPUZHA. 2. KRISHNAN, S/O.KELAN, KADAMBODAN HOUSE, ELINIPIRA HOUSE, ELINIPRIA P.O. 3. THE ORIENTAL INSURANCE COMPANY, ELENGICAL MATHEW MEMORIAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM. ADV. SRI.P.V.JYOTHI PRASAD FOR R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------------------- M.F.A NO. 492 OF 2002 E -------------------------------------- DATED THIS THE 4TH DAY OF AUGUST, 2010 JUDGMENT ----------------- Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV) No. 196/97 on the file of Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated October 20, 2001 awarding a compensation of Rs.67,000/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The appellant/claimant sustained the following injuries in a motor accident that occurred on December 7, 1996 at about 8.15 p.m. near Tile Factory at East Potta. i) Crush injury right hand ii) Compound fracture Trapezium 1st Meta Carpel Bone. iii)Compound fracture scaphoid. iv)Compound fracture proximal phalanx right little finger. v)Compound fracture 3rd meta carpel. 3. The accident happened when the autorickshaw bearing registration No. KL-8/H 6826 in which he was travelling collided head on with the autorickshaw bearing registration No. M.F.A NO. 492 OF 2002 2 KL-7/B 1837. Alleging negligence against the drivers of both the autorickshaws, respondents 2 and 5 in OP, the claimant filed the O.P before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 2 lakhs. Respondents 1 and 2, the owner and driver of the autorickshaw bearing registration No. KL-7/B 1837 remained absent before the Tribunal. The 3rd respondent, the insurer of the said autorickshaw filed a written statement admitting the accident but attributed negligence to the driver of the other autorickshaw. 4. The 4th respondent in O.P, the owner of the autorickshaw bearing registration No. KL-8/H 6826 remained absent before the Tribunal. No relief was sought against the 5th respondent, the driver of the said autorickshaw. The 6th respondent, the insurer of the said vehicle admitted the policy but attributed the negligence to the driver of the other autorickshaw. 5. PWs 1 and 2 were examined and Exhibits A1 to A11 were marked on the side of the claimant. On the side of M.F.A NO. 492 OF 2002 3 respondents, Ext.B1 was marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the 2nd respondent, the driver of the autorickshaw bearing registration No. KL-7/B 1837 and awarded a compensation of Rs. 67,000/- with interest at the rate of 9% per annum from the date of petition till realization and proportionate cost against respondents 1 to 3. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellant/claimant and the counsel for the Insurance Companies. 7. 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, the driver of the offending vehicle is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ? M.F.A NO. 492 OF 2002 4 8. The Tribunal awarded a total compensation of Rs. 67,000/-. The break up of the award amount is as under: Loss of earnings : Rs. 9,000 (@ Rs. 1500 per month for 6 months) Transportation expenses : Rs. 1,000 Medical expenses : Rs. 14,000 Disability caused : Rs. 32,400 Pain and sufferings : Rs. 6,000 Loss of amenities including discomfort and inconvenience : Rs. 4,600 caused ----------------- Total : Rs. 67,000 ========== 9. The counsel for the claimant sought enhancement of the compensation awarded for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment of life. The Tribunal took the monthly income of the claimant as Rs. 1,500/- and took his percentage of disability as 10% and adopted a multiplier of 18 and awarded a compensation of Rs. 32,400/- towards disability caused. 10. According to the claimant he was working as an Electrician at C.A.K Electricals, Kalamassery and was earning M.F.A NO. 492 OF 2002 5 Rs. 4,500/- per month as revealed from Ext. A10, his employment certificate. Taking into consideration above aspect, we feel that his monthly income can be reasonably fixed at Rs. 2,500/- per month. The multiplier adopted by the Tribunal as 18 is not challenged as he was aged 26 at the time of accident. His percentage of disability was assessed as 30% by Doctor, PW2. The claimant has now the following disabilities; “ The petitioner was found to be having deformity to the right hand ring, little middle, index and thumb. Right little finger was totally functionless, due to fracture and loss of proximal phalanx due to infection. The stiffness and pain of right thumb, middle ring and little fingers and wrist joint was observed. There was ugly scars over the right ring finger, dorsum of right hand etc.. The petitioner has difficulty to hold small objects with the right hand. His grip is lost, effective function of right hand is lost”. 11. Though this Court directed him to appear before the Medical Board, he did not appear. Therefore, we feel that the percentage of disability assessed by the Tribunal as 10% is reasonable. Thus calculated, for the disability caused, the claimant is entitled to a compensation of Rs.54,000/- (10% x 2500 x 12 x 18). Thus, the claimant is entitled to an additional M.F.A NO. 492 OF 2002 6 compensation of Rs. 21,600/- on this count. 12. Towards loss of earnings, the Tribunal awarded a compensation of Rs. 9,000/- ie. for six months at the rate of Rs.1,500/- per month. As we have already fixed the monthly income of the claimant as Rs. 2,500/-, towards loss of earnings the claimant is entitled to a compensation of Rs. 15,000/-. Thus, the claimant is entitled to an additional compensation of Rs. 6,000/- on this count. 13. For pain and sufferings endured, the Tribunal awarded only Rs. 6,000/- as compensation which appears to be very low. Taking into consideration the nature of injuries sustained, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Thus, the claimant is entitled to an additional compensation of Rs. 9,000/- on this count. 14. The Tribunal awarded Rs. 4,600/- for loss of amenities, discomfort and inconvenience caused. Having regard to the nature of injuries sustained, we feel that a compensation of Rs. 10,000/- would reasonable on this count. Thus, the M.F.A NO. 492 OF 2002 7 claimant is entitled to an additional compensation of Rs. 5,400/- on this count. 15. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 16. Thus the claimant is entitled to an additional compensation of Rs. 42,000/-. He is entitled to interest @ 9% per annum from the date of petition till realization 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 PKK JUDGE M.F.A NO. 492 OF 2002 8