IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 MACA.No. 142 of 2004(P) ------------------------------------ OPMV.865/1997 of I ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/PETITIONER -------------------------------------- SANTHOSH KUMAR, SANTHOSH BHAVAN, MUHATHALAM, KOLLAM. BY ADV. SRI.JACOB SEBASTIAN, SRI.M.A.RASHID. RESPONDENTS/RESPONDENTS ------------------------------------------------ 1. J. SURAPALAN, S/O. JANARDHANAN, BISMI NIVAS, MEENAD, NEDUNGOLAM, KOLLAM (OWNER OF THE BUS) 2. J. RAJAN, S/O. JANARDHANAN KURUP, PULLMORDEEN, KOONAYIL, PARAVOOR. (DRIVER OF THE BUS) 3. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., HOSPITAL ROAD, KOLLAM (INSURER OF THE BUS) POLICY NO. 3176090255969,CERTIFICATE NO.406/9999O. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 142 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 22nd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.865 of 1997 of the First Addl. Motor Accidents Claims Tribunal, Kollam challenges the judgment and award of the Tribunal dated October 30, 2003, awarding a compensation of Rs.35,200/- 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 a student, aged 20 at the time of the accident. On September 26, 1996 at 1 p.m. the claimant was pillion riding on a motor cycle bearing registration No.KL-2A/3185 at Kollam and when he reached in front of the S.N. College, Kollam at National Highway 47, a bus bearing registration No.KL/13A/5425 came at a high speed and dashed against the motor cycle MACA 142/2004 2 on which the claimant was pillion riding. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending bus 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 bus are jointly and severely liable to pay the compensation to the claimant. The claimant claimed a compensation of Rs.2 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending bus, though entered appearance, did no file any written statement before the Tribunal. The third respondent, insurer of the offending bus, filed written statement, admitting the policy and further contended that there was also negligence on the part of the rider of the motor cycle. 4. The claimant was examined as PW1 and Exts. A1 to A11 were marked on the side of the claimant. No evidence was adduced by the respondents. The Tribunal, on an MACA 142/2004 3 appreciation of the evidence, awarded a compensation of Rs.35,200/- with interest at the rate of 9% p.a. from the date of petition till realization. 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, driver of the offending bus, 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 Exdt.A5 copy of the wound certificate:- 1) Lacerated wound 3 c.m. on (Lt) parietal region. 2) Vertical wound on Zyg arch. 3) Cut injury on (Rt) cheek. MACA 142/2004 4 4) Abrasion on (Lt) knee. Investigation showed that he had haemotoma in Rt. Basal ganglion region with ordoema and mass effect and he had fracture of Lt clavicle. Ext.A9 certificate of disability shows that he has a permanent disability of 12%. He had impaired memory and concentration disability and had Lt. hemiparesis. 8. The Tribunal awarded a total compensation of Rs.35,200/-. Break up of the compensation awarded is as under:- Transportation : Rs. 2,000/- Medical expenses : Rs. 7,000/- Pain and suffering : Rs.10,000/- Disability caused : Rs.16,200/- ------------------ Total : Rs.35,200/- ======= 9. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused. 10. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as MACA 142/2004 5 5%, adopted a multiplier of 18 and awarded a compensation of Rs.16,200/- for the disability caused. The claimant was a student, aged 20 at the time of the accident. Therefore, the Tribunal is perfectly justified in taking his monthly income as Rs.1,500/-. The multiplier adopted by the Tribunal is not seriously disputed. Regarding the disability caused, we feel that percentage of disability can be assessed at 12%, taking into consideration the present disability of the claimant as described in Ext.A9. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.38,880/- (Rs.1,500/- x 12 x 18 x 12%). Thus, on this count, the claimant is entitled to an additional compensation of Rs.22,680/-. 11. There is another aspect in this case. No compensation was awarded for the loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.7,500/- would be reasonable for the loss of amenities and enjoyment in life. As regards the compensation awarded MACA 142/2004 6 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.30,180/-. He is entitled to interest @ 9% from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending bus, 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