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 24TH MARCH 2010 / 3RD CHAITHRA 1932 MACA.No. 319 of 2005() ------------------------------- OPMV.775/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): /PETITIONER ------------------------ PANAYAN BALAKRISHNAN, AGED 27 YEARS,S/O. SEKHARAN, VADIKKAL,P.O.MADAI,KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENT(S): 2ND RESPONDENT ----------------------------- THE ORIENTAL INSURANCE CO.LTD., SOUTH BAZAR,KANNUR. ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 319 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV) No.775 of 1998 of Motor Accidents Claims Tribunal, Thalassery challenges the judgment and award of the Tribunal dated March 15, 2004, awarding a compensation of Rs.71,700/- for the loss caused to him, 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 27 at the time of the accident and used to earn Rs.200/- per day from construction work, according to him. On October 18, 1997 at about 6 p.m. while he was travelling in an auto-rickshaw bearing registration No. KL-13/C 8965, driven by the first respondent, and reached at a place called “Madai”, the auto-rickshaw capsized. The claimant sustained serious MACA 319/2005 2 injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending auto- rickshaw by the first respondent. First respondent as the driver-cum-owner and second respondent as the insurer of the offending auto-rickshaw are jointly and severally liable to pay compensation to the claimant. 3. Though the first respondent, owner-cum-driver of the offending auto-rickshaw,entered appearance, he did not file any statement before the Tribunal. The second respondent, the insurer of the offending auto-rickshaw filed a written statement, admitting the policy. 4. The claimant was examined as PW1 and Exts.A1 to A7 and Ext.X1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs.71,700/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA 319/2005 3 5. Heard the counsel for the appellant/claimant and the counsel for second respondent 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 first 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.A2 discharge card issued from the hospital:- 1) Crush injury over the dorsum of right wrist with skin loss. 2) Crush injury on the left foot with skin loss. 3) Crush injury on the left hand with skin loss. He was hospitalized for about 17 days. Ext.X1 disability certificate issued by the Medical Board would show that the claimant has suffered total disability of 23%. The Tribunal awarded a total compensation of Rs.71,700/-. Break up of MACA 319/2005 4 the compensation awarded is as under : Hospital expenses : Rs.1,700/- Medical expense : Rs.16,500/- Transportation expense : Rs.1,000/- Loss of earning : Rs.6,000/- (four months @ Rs.1,000/- per month). Pain and sufferings : Rs.12,000/- Disability caused : Rs.32,500/- Loss of amenities and : Rs.2,000/- enjoyment of life. -------------------- Total : Rs.71,700/- ======== 8. The learned counsel for appellant sought enhancement of compensation towards the disability caused. The Tribunal took the monthly income of the claimant as Rs.1,500/-, adopted a multiplier of 18, took the disability as 10% and awarded a compensation of Rs.32,500/- for disability caused. The claimant as PW1 testified that he was doing construction work and used to earn Rs.200/- per day. Therefore, we feel that the monthly income of the claimant can reasonably be fixed at Rs.3,000/-. 9. The claimant has now the following disabilities, as MACA 319/2005 5 revealed from Ext.X1 disability certificate:- 1) Range of motion of left thumb limited from full flexion to 50 degree extension at the phalangeal joint 3% is assessed. 2) Partial ankylosis of the right wrist from 80 degree line to 30 degree palmar flexion 6% disability is assessed. 3) Another 3% is assessed for 15 degree abduction to 18 degree line, etc. The Medical Board has assessed permanent disability at 23%. But, going through Ext.X1, we are of the view that 10% disability assessed by the Tribunal is perfectly justified. Thus, for the disability caused, the claimant is entitled to a compensation of Rs.64,800/- (Rs.3,000/- x 12 x 18 x 10%). Therefore, the claimant is entitled to an additional compensation of Rs.32,300/- on this count. Regarding compensation granted under other heads, we find the same to be just and proper and therefore, we are not disturbing the same. MACA 319/2005 6 10. In the result, the claimant is found entitled to Rs.32,300/- as additional compensation. He is entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. The second 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. mn. MACA 319/2005 7