IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 MACA.No. 729 of 2004() ---------------------- OPMV.1610/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- M.M. CHACKO, AGED 61 YEARS, S/O. CHACKO MATHEW, MOONNUTHAICKAL ETTIL VEEDU, EDATHJUA PANCHAYATH, WARD IX, EDATHUA VILLAGE, EDATHUA. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): RESPONDENTS --------------- 1. P.H. NAUSHAD, PUTHUPARAMBIL HOUSE, CHIRAKKADAVU P.O., PONKUNNAM, KANJIRAPPALLY, KOTTAYAM DISTRICT. 2. ASHOK KUMAR, S/O. GOPALAKRISHNAN @ KUTTAN, THYCHIRAYIL VEEDU, THALAVADY PANCHAYATH WARD-6, THALAVADY VILLAGE, THALAVADY. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., DOCTORS TOWER, 2ND FLOOR, P.B.NO.78, CHANGANACHERRY-686 101. ADV. SRI.GEORGE JACOB (JOSE) FOR R2 SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 729 of 2004 ------------------------------------------------------ Dated: JUNE 24, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1610/1998 on the file of the Motor Accidents Claims Tribunal, Alappuzha, challenges the judgment and award of the Tribunal dated July 21, 2003 awarding a compensation of Rs.37,221/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 55 at the time of the accident and as a Supervisor in Unity Builders, Maharashtra, used to earn Rs.3000/- per month, according to him. On April 26, 1998 at about 8.30 a.m. the claimant was cycling along Kulangara - Vettuthodu road. When he reached near the shop of one Kunjumon, an autorickshaw bearing registration No.KL-5/D 6925 driven by the 2nd respondent came at a high speed and and knocked him down. The claimant sustained serious injuries. According to him the accident occurred due to the rash and negligent driving of the offending autorickshaw by the 2nd respondent. The M.A.C.A. 729 of 2004 2 1st respondent as the owner and the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending autorickshaw are jointly and severally liable to pay compensation to the claimant. The claimant claimed a total compensation of Rs.3 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending autorickshaw, remained absent before the Tribunal and they were set ex parte. The 3rd respondent, insurer of the offending vehicle, filed a written statement admitting the policy and further contended that there was also negligence on the part of the claimant. 4. The claimant was examined as PW.1 and Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal awarded a compensation of Rs.37,221/- with interest @ 7.5% per annum from the date of the petition till realisation and a cost of Rs.750/-. 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 driver of M.A.C.A. 729 of 2004 3 the offending vehicle 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, copy of the wound certificate, Ext.A6 discharge card, Ext.A7 medical certificate and Ext.A10 disability certificate issued from the hospital: “crush injury right little toe with laceration, 1 cm. bone deep contaminated wound, X-ray proved fracture of proximal phalanx of right 5th toe.” 8. The Tribunal awarded a total compensation of Rs.37,221/-. The break up of the compensation awarded is as under:- pain and suffering - Rs.6000/- medical expenses - 13721/- transportation etc. - 3000/- loss of earnings for 3 months - 4500/- disability and loss of enjoyment and amenities of life - 10000/- 9. Counsel for the claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs.1500/-. He claims to be employed as a M.A.C.A. 729 of 2004 4 Supervisor in Unity Builders, Maharashtra, earning Rs.3000/- per month. Ext.A11 is the employment certificate. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed as Rs.2000/-. In Ext.A10 certificate of disability, the doctor certified that the claimant has a permanent disability of 9.6%. The Tribunal took the percentage of disability only as 4% which appears to be very low. Taking into consideration the disability fixed in Ext.A10, we feel that the percentage of disability suffered by the claimant can be assessed as 5%. The multiplier adopted by the Tribunal is 8 which is not seriously disputed. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.9600/-. The Tribunal awarded a compensation of Rs.10,000/- for the disability caused and loss of amenities and enjoyment of life. We have awarded Rs.9600/- for the disability caused. For the loss of amenities and enjoyment of life, the compensation of Rs.10,000/- awarded by the Tribunal appears to be reasonable. Thus on this count the claimant is entitled to an additional compensation of Rs.9600/-. 10. There is another aspect. For the loss of earnings at the rate of Rs.1500/- p.m. for three months, the Tribunal awarded a compensation of Rs.4500/-. Now, as we have fixed the monthly M.A.C.A. 729 of 2004 5 income of the claimant as Rs.2000/-, he is entitled to an additional compensation of Rs.1500/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. Thus the claimant is entitled to an additional compensation of Rs.11,100/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The 3rd 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 mt/-