IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 MACA.No. 1375 of 2005() ---------------------------------- OPMV.1053/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): /APPLICANT. ----------------------- SURESH ALIAS SURENDRAN, THAIVILAKOM VEEDU, POZHIYOOR P.O. KULATHOOR, NEYYATTINKARA. BY ADV. SRI.G.SUDHEER RESPONDENT(S): RESPONDENTS 1 TO 3. ------------------------- 1. H.ABOOBACKER,KALLADIKU HOUSE, MAMPOTTUMOD, POOKKATTA MADOM, THIRUR. 2. ANIL KUMAR, THAZHAVILA HOUSE, KARODE, OLD UCHAKKADA, KAIKAVILA. P.O. 3. THE MANAGER, UNITED INDIA INSURANCE CO.LTD., MARATHANDAM, K.K.DISTRICT, TAMIL NADU. R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1375 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 25th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1053/2001 of Motor Accidents Claims Tribunal, Neyyattinkara challenges the judgment and award of the Tribunal dated July 3, 2004 awarding a compensation of Rs. 67,890/- for the loss caused to him, on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these:- The claimant was aged 33 at the time of the accident and he was earning Rs. 4,000/- per month as a Mason, according to him. On May 2, 2001, the claimant was travelling in a tempo trax bearing Reg.No. KL-10-C-5407 from Kaliyikkavila to Nagercoil. When the vehicle reached near District Club, Nagercoil, the second respondent, who was driving the vehicle, suddenly swerved the vehicle towards left and dashed against a tree on the left side of the road. Claimant MACA 1375/2005 2 and other passengers in the tempo trax sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending tempo trax by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs.2,50,000/-. 3. First respondent, the owner of the vehicle remained absent and was set ex parte by the Tribunal. The second respondent, the driver of the offending vehicle, filed a written statement admitting the accident, but denying the liability. The third respondent the insurer of the offending vehicle, filed a written statement admitting the policy. 4. The another passenger in the tempo trax who sustained injuries filed O.P.No.1055/2001 before the Tribunal. As both these O.Ps. arise out of the same accident, the Tribunal jointly tried all these original petitions and disposed of by a common award. MACA 1375/2005 3 5. PWs. 1 and 2 were examined and Exts.A1 to A17 series were marked on the side of the claimant before the Tribunal. On the side of the respondents, Ext.B1 was marked. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs. 67,890/-. 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 Company. 7. 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, 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 ? 8. The Tribunal awarded a total compensation of Rs.67,890/-. The break up of the compensation awarded is as under : Pain and sufferings - Rs. 12,000/- Loss of earnings - Rs. 6,000/- MACA 1375/2005 4 (@ Rs. 3,000/- per month for 2 months) Transport to hospital - Rs. 1,000/- Treatment expenses - Rs. 8,000/- Damage to clothing - Rs. 250/- Disability caused - Rs. 32,640/- Discomfort and loss of amenities and enjoyment of life - Rs. 8,000/- ---------------------- Total - Rs. 67, 890/- =========== 9. The claimant sustained the following injuries, as revealed from Ext.A2, the copy of the wound certificate issued by Dr.Jayasekharan of Medical Trust, Nagercoil. 1) Multiple lacerated wound on the front of ( L) thigh. 2) Compound fracture lower third of ( R) femur. Exts.A3 to A10 are referral O.P. cards issued from Medical College Hospital, Thiruvananthapuram. He was admitted in the hospital from 4/5/2001 to 31/05/2001. 'K' nailing and bone grafting done for fracture femur. 10. Counsel for the claimant claimed enhancement of compensation for the disability caused, loss of earnings, loss of amenities and enjoyment of life and for pain and suffering endured. MACA 1375/2005 5 11. Claimant as PW1 testified that he was Mason earning Rs.4,000/- per month and was aged 33 at the time of the accident. The Tribunal took the monthly income of the claimant as Rs. 2,000/-. Counsel for the claimant submitted that the Tribunal should have taken his monthly income as Rs. 4,000/-. But no document is produced by the claimant to prove his income. Ext.A3, the copy of the SSLC book shows that he was aged 33 at the time of the accident. Therefore, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. The Tribunal adopted a multiplier of 17 and took his percentage of disability as 8% which is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 40,800/-. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 8,160/-. 12. There is another aspect. For the loss of earnings, the Tribunal awarded Rs. 6,000/- for three months at the rate of Rs.2,000/- per month. We have fixed the monthly income of the claimant as Rs. 2,500/-. Therefore, for the loss of MACA 1375/2005 6 earnings, the claimant is entitled to a compensation of Rs.7,500/-. Thus, the claimant is entitled to an additional compensation of Rs. 1,500/- on this count. As regards the compensation awarded under other heads, we find the same is reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is entitled to an additional compensation of Rs. 9,660/-. He is entitled to interest @ 9% per annum from the date of petition till realization 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. mn.