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 9TH APRIL 2010 / 19TH CHAITHRA 1932 MACA.No. 1188 of 2004() ----------------------- OPMV.2643/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/PETITIONER: --------------------------------------- P.K.MUHAMMED UMMER,S/O.MUHAMMED MARAKKAR, AGED 46 YEARS,'ABOO MANZIL',1/634-A, THATTANKANDI PARAMBA,NALLALAM P.O.,KOZHIKODE. BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): RESPONDENTS 1 TO 3. -------------------------------------------------------------- 1. D.DORESAMY,AGED 36 YEARS, S/O. NANDAN @ DORESAMY,KADAR PETA,ATHUR VILLAGE, NO.31,SALEM DISTRICT,TAMILNADU. 2. V.S.PALANI,AGED 45 YEARS, S/O.YATHIRAJ GOWNDER,GUDIYATHAM TALUK, YARANDANGAL,P.O.,TAMIL NADU. 3. M/S. UNITED INDIA INSURANCE CO.LTD., 46/51 ,KATPADI ROAD, P.B.NO.414,VELLORE, TAMILNADU. R3 BY ADVS. SRI.AGINOV MATHAPPAN, SMT.K.SHERIN MOHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1188 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 9th day of April, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.2643 of 1995 of the Principal Motor Accidents Claims Tribunal, Kozhikode challenges the judgment and award of the Tribunal dated December 29, 2003 awarding a compensation of Rs.47,400/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 46 at the time of the accident and used to earn Rs.100 per day as a Painter, according to him. On June 29, 1995 the claimant was traveling in a K.S.R.T.C. bus bearing registration No. KL- 15/1106 (TA 145) from Kozhikode to Bangalure. When the bus reached near Nanjangode petrol bunk, a lorry bearing registration No. TCE 5947, driven by the second MACA 1188/2004 2 respondent came at a high speed from the opposite side dashed against the bus in which the claimant was traveling. He sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending lorry by the second respondent. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severely liable to pay the compensation to the claimant. The claimant claimed a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, owner and driver of the offending lorry remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending vehicle, filed a written statement, admitting the accident, but denying the liability. . 4. Exts. A1 and A2 and C1 and X1 were marked on the side of the claimant. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the MACA 1188/2004 3 negligence on the part of the second respondent, driver of the offending lorry, and awarded a compensation of Rs.47,400/- with interest at the rate of 9% p.a. from the date of petition till realization and cost. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimant and learned 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 for consideration is whether the claimant is entitled to any enhanced compensation. 7. Ext.A2 is the copy of the wound certificate issued from the K.R. Hospital, Mysore. Ext.X1 is the case sheet produced form the Medical College Hospital, Kozhikode. Ext.C1 is the report of the Medical Board. Exts.A2, X1 and C1 would show that the claimant sustained super condylar MACA 1188/2004 4 fracture of right humerus and lacerated injury on the posterior part of right elbow joint. The Medical Board assessed his disability at 10%. 8. The Tribunal awarded a total compensation of Rs.47,400/-. Break up of the compensation awarded is as under:- Loss of earnings : Rs.4,500/- Transport to hospital and : Rs.2,000/- extra nourishment. Future treatment : Rs.2,000/- Medical expenses, : Rs.3,500/- by-stander’s expenses and hospitalization charges. Pain and suffering : Rs.10,000/- Loss of amenities : Rs.2,000/- and enjoyment in life. Disability caused : Rs.23,400/- ------------------ Total : Rs.47,400/- ======= 9. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused. The Tribunal took annual income of the claimant as Rs.15,000/-, adopted a multiplier of 13 and awarded a compensation of Rs.23,400/- for the disability caused. The claimant was aged 46 at the time of the MACA 1188/2004 5 accident. According to him, he was a Painter and used to earn Rs.100/- per day. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at Rs.2,500/-. Multiplier of 13 adopted by the Tribunal as well as the percentage of disability as 10% as shown in Ext.C1 is not seriously challenged in this appeal. Thus, for the disability caused, the claimant is entitled to a compensation of Rs.39,000/-. Thus, on this count, the claimant is entitled to an additional amount of Rs.15,600/-. 10. The Tribunal awarded Rs.4,500/- for loss of earnings i.e., for three months @ Rs.1,500/- per month. As we have found that his monthly income can be fixed at Rs.2,500/-, he is entitled to a compensation of Rs.7,500/- for the loss of earnings. Thus, the claimant is entitled to an additional compensation Rs.3,000/- on this count. 11. The Tribunal awarded Rs.10,000/- for the loss of amenities and enjoyment in life, which appears to be very low. Therefore, towards loss of amenities and enjoyment of life, the claimant is entitled to a compensation of MACA 1188/2004 6 Rs.10,000/- . Thus, on this count, the claimant is entitled to an additional compensation of Rs.8,000/- As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. In the result, the claimant is entitled to an additional compensation of Rs.26,600/-. He is entitled to interest @ 9% from the date of petition till realization. The second respondent being the insurer of the offending lorry shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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