IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 MACA.No. 659 of 2004() ---------------------- OPMV.1384/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: ----------------------------------- M.M. HANEEF, AGED 50 YEARS, SON OF MOIDEEN SAHIB, MARAVANAVEETTIL HOUSE, MEKKAD P.O., NEDUMBASSERY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, KERALA. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.NITHYA.K. RESPONDENT(S): RESPONDENTS --------------- 1. MR. A. LAKSHMANAN REDDY, S/O. APPANNA REDDY, IRABHANAHALLIL, MALUR TALUK, KOLAR DISTRICT. 2. NARAYANA SWAMY, S/O. SUBAPPA, IRABHANAHALLI VILLAGE, MODIVATHU DESOM MALUR TALUK, NEAR GOVT.HIGH SCHOOL, KOLAR DISTRICT, KARNATAKA. 3. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., 48, CHURCH STREET, BANGALORE. ADV. DR.ELIZABETH VARKEY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.659 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No. 1384/1996 of Motor Accidents Claims Tribunal, Perumbavoor challenges the judgment and award of the Tribunal dated September 30, 2003 awarding a compensation of Rs. 1,53,500/- 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 42 at the time of the accident and was earning an income of Rs. 3,000/- per month from real estate business, according to him. On September 14, 1995, the claimant was driving a car bearing Reg.No. KL-7D-7427 along Aluva-Angamaly National Highway from south to north. When he reached near Kerala Pharmacy at Nedumbassery at about 11.30 a.m., a tempo van bearing Reg.No.KA-03.375 driven by the second respondent came at a high MACA.No.659/2004 2 speed from the opposite direction and dashed against the car of the claimant. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending tempo van by its driver, the second respondent. Respondents 1 to 3, the owner, driver and insurer of the offending tempo van are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and the driver of the offending tempo van remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending temp van filed a written statement admitting the policy, but contending that there was also negligence on the part of the claimant. 4. PWs 1 and 2 were examined and Exts.A1 to A9 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked before the Tribunal. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 1,53,500/- with interest @ 9% per annum from the date of petition till realisation and cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the MACA.No.659/2004 3 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. Claimant sustained the following injuries as revealed from Ext.A4, the copy of the wound certificate and Ext.A5, the certificate issued by Ophthalmologist of Little Flower Hospital, Angamaly. 1. Contusion and laceration over left eyelid with conjectival and corneal tear. 2. Contusion on the left forearm. 3. Laceration right ankle 2 cm. x 5 cm. 4. Abrasion right knee and left knee. 5. Fracture of ulnar lower third left. 8. He was admitted in the Karothukuzhi hospital on 14-09-1995 and wad discharged on 20-09-1995. He was admitted in MACA.No.659/2004 4 the Little Flower Hospital, Angamaly on 20-09-1995 and was discharged on 14-10-1995. It is seen from Ext.A5, the certificate issued from the Little Flower Hospital, Angamaly that he underwent the following treatment. Orbital foreign body left which was surgically explosed and removed. The lens got subluxated. He has optic atrophy in the left eye, his visual acuity of right eye is 6/6 and regarding left eye no perception of light ( NOPL). 9. The doctor has certified that there is no chance of visual improvements in the left eye. Ext.A6, the certificate of the Dental Surgeon shows that claimant has lost two teeth which has been replaced. The claimant has lost vision on the left eye. Ext.A8, the certificate of Ophthalmologist shows that he has now a disability of 30%. 10. The Tribunal awarded a compensation of Rs. 1,53,500/-. The break up of the compensation awarded is as under : Pain and suffering - Rs. 18,000- MACA.No.659/2004 5 Loss of earning - Rs. 4,500/- Damage to clothes - Rs. 300/- Transportation expenses - Rs. 1,000/- Medical expenses - Rs. 16,200/- Bystander expenses - Rs. 2,500/- Loss of amenities - Rs. 20,000/- Disfiguration - Rs. 10,000/- Disability - Rs. 81,000/- 11. Counsel for the claimant sought enhancement of the compensation for the disability caused. 12. The Tribunal took the monthly income of the claimant as Rs. 1500/- and took the disability as stated in Ext.A8 as 30% and adopting a multiplier of 15 awarded Rs. 81,000/- for the disability caused and consequential loss of earning power. The claimant was aged 42 at the time of the accident and according to him he was doing some real estate business. Taking into account all these aspects, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. The disability assessed by the Tribunal as well as the multiplier adopted are not seriously challenged. Thus calculated for the disability caused and for the consequential loss of earning power, claimant is MACA.No.659/2004 6 entitled to a compensation of Rs. 108,000/- ( 30 % x 2000 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs. 27,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. In the result, the claimant is found entitled to an additional compensation of Rs. 27,000/- with interest at the rate of 9% 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 the 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.659/2004 7 MACA.No.659/2004 8