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 9TH JUNE 2010 / 19TH JYAISTHA 1932 MACA.No. 352 of 2004() ---------------------- OPMV.914/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER IN OP.MV. -------------------------------------------- MOHANAN, S/O.GANGADHARAN, NEDUMPARAMBIL HOUSE, PALLIPORT P.O. ERNAKULAM DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPODNENT IN OP.MV. ----------------------------------- 1. K.A.PRADEEP, S/O.ANDI, KALLUNGAPPURATH HOUSE,AZHIKODE, KODUNGALLUR. 2. ABDUL RAHEEM, S/O.IBRAHIM, PUZHAKARA ILLATH HOUSE,AZHIKODE JETTY P.O. KODUNGALLUR. 3. THE ORIENTAL INSURANCE COMPANY, U BROTHERS BUILDINGS, GURUVAYOOR ROAD, KUNNAMKULAM. ADV. DR.ELIZABETH VARKEY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.352 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th 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.914/1997 of Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated July 11, 2003 awarding a compensation of Rs.38,000/- 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 : Claimant was aged 46 at the time of accident and used to earn Rs. 8,000/- per month as a commission agent and fish vendor, according to him. On November 8, 1996 at about 10 a.m., claimant was travelling as a passenger in an autorickshaw bearing Reg.No.KL- 7/E 8397 along Anchappalam Kodungallur public road. When he reached at Puthanpalli junction, the driver of the autorickshaw lost the control of the vehicle and it over turned. Claimant sustained very serious injuries. According to the claimant, accident occurred due to MACA.No.352/2004 2 the rash and negligent driving of the offending autorickshaw by its driver, second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending autorickshaw are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 3 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending autorickshaw remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending autorickshaw, filed a written statement admitting the policy, but contended that there was no negligence on the part of the second respondent. 4. This O.P. was jointly tried along with O.P.(MV) No.791/1997, the claim petition filed by another injured person in the accident and a common award was passed. Pws 1 and 2 were examined and Exts.A1 to A15 were marked on the side of the claimants before the Tribunal. Ext.B1 was marked on the side of 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 MACA.No.352/2004 3 autorickshaw by second respondent and awarded a compensation of Rs. 38,000/- with interest @ 9% per annum from the date of petition till realisation. 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. 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.A5, the copy of the wound certificate, Ext.A6, discharge certificate issued from the hospital. 1. Fracture 2nd, 3rd and 4th meta tarsal right foot. 2. Fracture scaphoid. 8. He was in the hospital till November 27, 1996. Open reduction and internal fixation were done. Ext.A8, the certificate of disability shows that he has suffered a disability of 13%. MACA.No.352/2004 4 9. The Tribunal awarded a total compensation of Rs.38,000/-. The break up of the compensation awarded is as under : Loss of income - Rs.6,000/- Transportation expenses - Rs.1,000/- Medical expenses - Rs.13,300/- Bystander expenses - Rs. 500/- Loss of earning power - Rs.11,700/- Pain and suffering - Rs. 3,000/- Loss of amenities - Rs. 2,500/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused, loss of amenities and enjoyment of life, pain and suffering endured and for loss of earnings. 11. The Tribunal took the monthly income of the claimant as Rs.1500/- and took the disability as 5% and adopted a multiplier of 13 and awarded Rs. 11,700/- for the disability caused. The claimant was a fish vendor as well as commission agent, according to him. Ext.A9 is the certificate to that effect issued by the Secretary, Export Seafood Dealers Association, Munambam. Taking into consideration this aspect, we feel that his monthly income can be reasonably fixed at Rs. 3,000/-. Ext.A8, the certificate of disability shows that the claimant has now the following disabilities : MACA.No.352/2004 5 Limitation of flexion of 2nd, 3rd and 4th toes at meta tarsal (MTP) I.P. joints due to partial ankylosis. There was tenderness at the fracture site. Functionally he has difficulty for grip, to wear chappals, to stand for long time, to walk fast, to run etc. 12. Taking into consideration the above fact, we feel that the percentage of disability of the claimant can be taken as 10%. The multiplier adopted by the Tribunal as 13 is not seriously challenged in this appeal. Thus calculated for the loss of disability caused, the claimant is entitled to a compensation of Rs. 46,800/- ( 10 % x 3000 x 12 x 13). Thus on this count, the claimant is entitled to an additional compensation of Rs. 35,100/-. 13. For the pain and suffering endured, the Tribunal awarded a compensation of Rs. 3,000/- which, in our view, is very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. Thus, on this count, the claimant is entitled to an additional compensation of Rs.7,000/-. MACA.No.352/2004 6 14. A compensation of Rs. 2,500/- was awarded by the Tribunal for the loss of amenities and enjoyment of life. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 7500/-. 15. There is another aspect in this case. The Tribunal awarded a compensation of Rs. 6,000/- for loss of earnings for four months @ Rs. 1500/- per month. As we have fixed the monthly income of the claimant as Rs. 3,000/-, the claimant is entitled to a compensation of Rs. 12,000/- for loss of earnings for four months. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 6,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 16. In the result, the claimant is entitled to an additional compensation of Rs. 55,600/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. MACA.No.352/2004 7 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.352/2004 8