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 21ST JUNE 2010 / 31ST JYAISTHA 1932 MACA.No. 881 of 2004() ---------------------- OPMV.2615/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- N.I.SHAJAHAN @ SHAMON, THENAMMAKKAL, ANAKKALLU P.O., KANJIRAPPALLY, NOW RESIDING AT SHIBU MANZIL, THAZHATHANGADI, KOTTAYAM. BY ADV. SMT.MINI ELIZABETH GEORGE SMT.BETTY K.ALUKKA RESPONDENT(S): RESPONDENTS -------------------------- 1. SAJU DOMINIC, KARIKKATTUKUNNEL HOUSE, PONKUNNAM. 2. ROY THOMAS, MRALAYIL HOUSE, KOOTHUPARAMBU, KANNUR DISTRICT. 3. ORIENTAL INSURANCE CO.LTD., KOTTAYAM DIVISION, REPRESENTED BY ITS DIVISIONAL MANAGER. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.881 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.2615/1998 of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated August 12, 2003 awarding a compensation of Rs. 38,170/- for the loss caused to him 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 aged 22 at the time of the accident and used to earn Rs. 2,000/- per month from scrap iron business, according to him. On June 15, 1998, claimant was travelling in an autorickshaw bearing Reg.No.KEK 8226. At that time, a jeep bearing Reg.No.KL 5A 3389 driven by the second respondent came at a high speed and dashed against the autorickshaw in which the claimant was travelling. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending jeep by second respondent. First respondent as the owner, second respondent MACA.No.881/04 2 as the driver and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, the owner and driver of the offending jeep remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending jeep filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the driver of the autorickshaw involved in the accident. 4. Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by second respondent and awarded a compensation of Rs. 38,170/- with interest @ 7% 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 awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. MACA.No.881/04 3 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 claimant sustained the following injuries as revealed from Ext.A2, the copy of the wound certificate and Ext.A3, the O.P. ticket. 1. Fracture of both bones of left forearm. 2. Fracture of right fibula. 3. Laceration on the face left side. Ext.A4, the certificate of disability shows that claimant has now 12% disability. In Ext.A4, it is stated that the claimant has the following disabilities : 1. Limitation of terminal 15 of extension of Lt elbow. 2. Limitation of terminal 10 of supination pronation with inferior radio-ulnar instability ( Piano Sign positive) 3. Chronic ankle pain ( lt). 8. The Tribunal awarded a total compensation of Rs.38,170/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 4,500/- Treatment expenses - Rs.1,250/- Transportation expenses - Rs.1,000/- MACA.No.881/04 4 Pain and suffering - Rs. 10,000/- Disability - Rs. 21,420/- 9. Counsel for the claimant sought enhancement of compensation for the disability caused and loss of amenities and enjoyment of life. 10. The Tribunal took the monthly income of the claimant as Rs. 1500/- , took the percentage of disability as 7% , adopted a multiplier of 17 and awarded Rs.21,420/- for the disability caused. The claimant was aged 22 at the time of the accident and used to earn Rs. 4,000/- per month from Scrap Iron business as stated by him in the petition . Taking into consideration these aspects, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,000/-. The multiplier of 17 adopted by the Tribunal appears to be reasonable in this case. Taking into consideration the nature of the injury sustained and the disability caused, we feel that the percentage of disability caused to the claimant can be assessed at 10%. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 40,800/- ( 2000 x 12 x 17 x 10%). Thus on this count, the claimant is entitled to an additional compensation of Rs. 19,380/-. MACA.No.881/04 5 11. No compensation was awarded by the Tribunal for loss of amenities and enjoyment of life. Taking into consideration the nature of the injury sustained by the claimant and the disability caused, we feel that a compensation of Rs.10,000/- would be reasonable for the loss of amenities and enjoyment of life. 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 claimant is entitled to an additional compensation of Rs. 29,380/-. He is entitled to interest @ 7% 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. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.881/04 6