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. 2459 of 2008() ----------------------- OPMV.3425/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER ------------------------ MR.JOSE.P.X,S/O.XAVIER, POOTHULLY HOUSE, EDAPPALLY MARKET ROAD, COCHIN-24. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENT(S): RESPONDENTS -------------------------- 1. THE PROPRIETOR, VITHAYATHIL AGENCIES, OPPOSITE MODERN FOOD, COCHIN-24. 2. BABURAJ, S/O.DINESAN, NAYAPPALLATHU PARAMBIL, WEST OF THANNIKAL BUS STOP, ELAMAKKARA DESOM, EDAPPALLY VILLAGE. 3. THE ORIENTAL INSURANCE CO.LTD, M.G.ROAD, ERNAKULAM. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD 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.2459 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - 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.3425/2001 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated February 16, 2008 awarding a compensation of Rs. 30,200/- 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 21 at the time of the accident and used to earn Rs. 2,000/- per month, according to him. On June 2, 2001 at about 10.30 a.m., the claimant was pillion riding on the motor cycle bearing Reg.No.KL-7/X 3449 ridden by the second respondent along Edappally Market Road. At that time, due to the rash and negligent riding of the motor cycle by second respondent, it hit on an electric post on the side of the road while overtaking an autorickshaw. Claimant sustained serious injuries. According to the claimant, accident occurred due to MACA.No.2459/2008 2 the rash and negligent riding of the offending motor cycle by second respondent. First respondent as the owner, second respondent as the rider and third respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 1,37,000/-. 3. Respondents 1 and 2, the owner and rider of the offending motor cycle remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending motor cycle filed a written statement admitting the policy and further contended that the claimant himself was riding the offending motor cycle. 4. PW1 was examined and Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent riding of the offending offending motor cycle by second respondent and awarded a compensation of Rs. 30,200/- with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.2459/2008 3 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. It is also admitted by the Insurance Company that as the policy is a comprehensive policy, third respondent is bound to indemnify the owner. 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.A2, the copy of the wound certificate and Ext.A6, the treatment certificate issued from Specialists' Hospital, Ernakulam. Loss of nail, nail bed and soft tissue from tip of left ring finger, crush injury and amputation of left ring finger at the base of nail and fracture tip of terminal phalanx of left ring finger. 8. The Tribunal awarded a total compensation of Rs.30,200/-. The break up of the compensation awarded is as under : MACA.No.2459/2008 4 Transportation, hospitalisation,attendant expenses,extra nourishment & damage to clothings - Rs. 1,000/- Medical expenses - Rs. 9,200/- Loss of earnings - Rs. 2,000/- Pain and suffering - Rs.10,000/- Discomfort & inconveniences - Rs. 8,000/- 9. Counsel for the claimant pointed out that no compensation was awarded for the disability caused, for loss of amenities and enjoyment of life and for loss of future prospects in his profession. 10. There is force in the above contention. The Tribunal did not award any compensation for the disability caused. Claimant as PW1 testified that he was aged 27 at the time of the accident and from his profession as a driver, he used to earn Rs. 2,000/- per month. The Tribunal has accepted the same. No certificate of disability is produced by the claimant before the Tribunal. But the tip of the left ring finger was amputated, which we feel, will affect his profession as a driver. Taking into consideration these facts, we feel that for the disability caused and for future prospects in his profession, a compensation of Rs. 25,000/- would be reasonable. For the loss of amenities and enjoyment of life, in our view, a compensation of Rs. 10,000/- would MACA.No.2459/2008 5 be just and proper. 11. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and awarded loss of earning for one month. Having regard to the fact that claimant was a driver, we feel that his monthly income can be reasonably fixed at Rs. 3,000/-. Therefore, towards loss of earning, he is entitled to a compensation of Rs. 3,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the claimant is entitled to an additional compensation of Rs. 36,000/-. He is entitled to interest @ 7.5% 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 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.2459/2008 6 MACA.No.2459/2008 7