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 26TH JULY 2010 / 4TH SRAVANA 1932 MACA.No. 2112 of 2005() ----------------------- OPMV.159/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA/WAYAND .................... APPELLANT/3RD RESPONDENT: --------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER,REGIONAL OFFICE SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.M.A.GEORGE RESPONDENT(S): 1ST PETITIONER AND RESPONDENTS 1 & 2 RESPECTIVELY: ----------------------------------------------------------------- 1. KUNHIMAYAN E., S/O. KUNHAMMED HAJI, AGED ABOUT 45 YEARS, ELAYADATH HOUSE, P.O. KANIYAMBETTA, VYTHIRI TALUK, WAYANAD DIST. 2. N. ALI, S/O. POCKER, AGED ABOUT 28 YEARS, NELLULLATHIL HOUSE, PANAMARAM P.O., WAYANAD DIST. (DELETED FROM THE PARTY ARRAY VIDE ORDER DT.3.12.2009 IN IA 3591/2009). 3. N. SAFEER, S/O. POCKER, NELLULLATHIL HOUSE, PANAMARAM P.O., WAYANAD DIST. ADV. SRI.JACOB SEBASTIAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.2112 of 2005 ------------------------------------------------------ Dated: JULY 26, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the 3rd respondent Insurance Company in OP(MV) 159/1997 on the file of the Motor Accidents Claims Tribunal, Kalpetta/Wayanad, challenges the judgment and award of the Tribunal, dated, May 25, 2005 awarding a compensation of Rs.1,63,250/- for the loss caused to the claimant on account of the injuries sustained by the claimant in a motor accident. 2. The facts leading to this appeal in brief are these: On December 3, 1997 at about 5.30 p.m. the claimant was riding his scooter along the road at Panamaram near Kalpetta. At that time an autorickshaw bearing registration No.KL-12-7637 driven by the 1st respondent came at a high speed and dashed against the scooter of the claimant. The claimant sustained serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 1st respondent. First respondent as the driver, 2nd respondent as the owner and the, 3rd respondent as the insurer of the offending autorickshaw are jointly and severally liable to pay compensation to the claimant. According to the claimant he was working as a Village Extension Officer earning M.A.C.A.2112 of 2005 2 Rs.4000/- per month and aged 37 at the time of the accident. 3. Respondents 1 and 2, the driver and the owner of the offending autorickshaw, filed a written statement admitting the accident, but denying the liability before the Tribunal. The 3rd respondent, insurer, filed a written statement admitting the policy. 4. The claimant was examined as PW.1 and Exts.A1 to A9 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 1st respondent and awarded a compensation of Rs.1,63,250/- with interest at the rate of 6% per annum and costs of Rs.1250/-. The Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal and also the finding that the accident occurred due to the negligence on the part of the 1st respondent, driver of the autorickshaw. 5. Heard the counsel for the Insurance Company and the counsel for the claimant. 6. The following points arise for consideration:- (1) Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the 1st M.A.C.A.2112 of 2005 3 respondent can be sustained? (2) Whether the compensation awarded by the Tribunal is excessive? 7. The first point to be considered is whether the accident occurred due to the negligence of the 1st respondent, the driver of the offending autorickshaw. The claimant as PW.1 has testified in a convincing manner before the Tribunal that the accident occurred due to the negligence on the part of the driver of the autorickshaw. His evidence was not discredited in cross-examination by the counsel for the 3rd respondent. First respondent, driver of the autorickshaw, has not chosen to come forward to swear that there was no negligence on his part or to show that there was also negligence on the part of the claimant. Therefore the Tribunal is perfectly justified in holding that the accident occurred due to the negligence on the part of the 1st respondent. The finding of the Tribunal on this point is confirmed. 8. The next question for consideration is whether the compensation awarded by the Tribunal is excessive. The Tribunal awarded a total compensation of Rs.1,63,250/-. The break up of the compensation awarded is as under:- loss of earnings - Rs.14,750/- transport charges - 1,250/- extra nourishment - 400/- M.A.C.A.2112 of 2005 4 bystander's expenses - 400/- damage to clothing - 200/- medical expenses - 9,250/- pain and suffering - 20,000/- 15% disability - 1,17,000/- He has suffered a disability of 20% as seen from Ext.C1 certificate of disability issued by the Medical Board. The Tribunal took the monthly income of the claimant as Rs.4055/- as revealed from his salary certificate Ext.A9, adopted a multiplier of 16, took the percentage of disability as 15% and awarded Rs.1,16,784/- for the disability caused. This is disputed by the counsel for the appellant Insurance Company. Counsel for the Insurance Company argued that as the claimant is still in service, the Tribunal is not justified in awarding compensation for the disability caused. There is no substance in the above contention. The claimant has suffered a disability of 20% as certified by the Medical Board. His movements of the right wrist is restricted and there is deformity of the wrist. Therefore the Tribunal is justified in awarding compensation for the disability caused. 9. The Tribunal took the percentage of disability as 15% and multiplier as 16 as the claimant was aged 37 at the time of the accident. The claimant is still in service. Therefore we feel that the M.A.C.A.2112 of 2005 5 multiplier of 15 would be reasonable in this case. Thus calculated, for the disability caused the claimant will be entitled to a compensation of Rs.1,09,485/- (4055 x 12 x 15 x 15%). As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. In the result the claimant is found entitled to a total compensation of Rs.1,55,735/- with interest and cost as awarded by the Tribunal. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-