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 3RD MARCH 2010 / 12TH PHALGUNA 1931 MACA.No. 875 of 2006() ---------------------- OPMV.1799/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ---------------------------------- PAILY VARKEY, RESIDING AT KANNAPPILLY HOUSE, NELLIMATTOM P.O., KOTHAMANGALAM TALUK, KERALAM (100% DISABLED) REP. BY HIS POWER OF ATTORNEY HOLDER, LISSY, W/O.PAILY, RESIDING AT KANNAPPILLY HOUSE, NELLIMATTOM P.O., KOTHAMANGALAM TALUK, KERALAM. BY ADV. SMT.ANNIE PAUL SRI.PHILIP J.VETTICKATTU RESPONDENT(S): RESPONDENTS --------------- 1. JOY, S/O.OUSEPH, EDAPPULAVAN HOUSE, KODANADU P.O., PERUMBAVOOR, KERALAM. 2. JOSE CHERIAN, PERIMPILLYCHIRA HOUSE, THOCKUPARA P.O., CHITHIRAPURAM, IDUKKI DISTRICT, KERALAM. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, PRAKASH BUILDING, J.B.JUNCTION, P.B.NO.5, THODUPUZHA, KERALAM. 4. VENKAT REGHUNATH REDDY, RESIDING AT HANUMAN VADI TALUK, BASTE, KAVMAN DISTRICT, BIDAR, KARNATAKA STATE. 5. PRAMOD KASHIWALE, RESIDING AT 8.4.394/B & 9/3, OPP.PCL GODOWN, HYDREBAD. 6. UNITED INDIA INSURANCE CO.LTD., BRANCH MARUNNAKA, HYDERABAD. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.875 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd 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. 1799/2001 of Motor Accidents Claims Tribunal, Muvattupuzha challenges the judgment and award of the Tribunal granting a compensation of Rs. 3,41,000/- 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 : The claimant is a driver aged 38 and used to earn Rs. 3,500/- per month, according to him. On March 20, 2001, the claimant was travelling in the lorry bearing Reg.No.KL-5B/1391 driven by the first respondent from Kothamangalm to Mumbai loaded with rubber sheets. The driver lost the control of the vehicle and it dashed against a truck bearing Reg.No.KA 39/9822. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the lorry by its driver, the first respondent. First MACA.No.875/06 Page numbers respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. 3. Respondents 4 to 6, the driver, owner and insurer of the truck involved in the accident were subsequently impleaded in the O.P. First respondent, the driver of the offending lorry was absent and was set ex parte before the Tribunal. Second respondent filed a written statement admitting the accident, but contending that the said vehicle was insured with the third respondent. Third respondent filed a written statement admitting the policy of the offending lorry, but contending that the accident occurred due to the negligence on the part of the driver of the other vehicle involved in the accident. Respondents 4 and 5, the owner and driver of the truck involved in the accident filed a joint written statement admitting the accident, but contending that the accident occurred due to the negligence on the part of the driver of the lorry. The sixth respondent, the insurer of the truck involved in the accident admitted the policy of the truck. 4. PWs 1 and 2 were examined and Exts.A1 to A17 were MACA.No.875/06 Page numbers marked on the side of the claimant before the Tribunal. On the side of the contesting respondents, RW1 was examined and Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence on the part of the driver of the offending lorry in which the claimant was travelling and awarded a compensation of Rs. 3,41,000/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. 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 for consideration is whether the claimant is entitled to any enhanced compensation ? 6. Heard the counsel for the appellant/claimant and the counsel for third respondent, Insurance Company. 7. Counsel for the appellant pointed out that the Tribunal proceeded to assess the compensation as provided under Workmens' Compensation Act which is not correct as the claimant has claimed compensation as provided under Motor Vehicles Act. There is force in MACA.No.875/06 Page numbers the above contention. The claim petition was filed under Section 166 of the Motor Vehicles Act . Therefore, the Tribunal should have assessed the compensation as provided under Section 166 of the Motor Vehicles Act. 8. The Appellant mainly disputed the quantum of compensation awarded for the loss of dependency. The claimant sustained haemopheumothorax, fracture of 3rd rib ( left side), fracture dislocation of D11, D12 vertebra with paraplegia , fracture tibia, fibula both legs with haemartherosis right knee as seen from Ext.A4, the copy of the certificate issued from Gandhi Hospital, Panavel and Ext.A11 treatment certificate issued from Gandhi Hospital. Ext.A7 is the discharge summary issued from Amritha Institute of Medical Science. He was admitted in the hospital several times. Ext.A9 is the discharge card issued from Chazhikattu Hospital, Thodupuzha. Ext.A12 is the certificate of disability issued by the Medical Board headed by the Superintendent of General Hospital, Ernakulam on 01/03/2005, a copy of which is produced by the claimant for our perusal which shows that the claimant has now the following disabilities : MACA.No.875/06 Page numbers “C/o Paralysis of both lower limbs. O/E - 30 cms. long surgical scar over dorsolumber spine region. No movements of both lower limbs with Gr.o muscle power. Bladder drainage is by Folley's Catheter. Bed sores present over the sacral & gluteal region. X-ray dorsal spine - height of D12 decreased. Disc space between D11 & D12 absent. Kyphosis at D11 D12. X-ray (R)leg - malunited # tibia X-ray (L) leg - united # tibia with implants in situ.” 9. The Board has certified that the total permanent physical disability of the claimant can be assessed as 100% which is not seriously challenged by the contesting third respondent. 10. RW1 is the employer of the claimant who issued Ext.A14 certificate to the effect that deceased was drawing a salary of Rs. 5,000/- per month. The Tribunal took the monthly income of the claimant as only Rs. 3000/-. Counsel for the appellant argued that as Ext.A14 is proved by RW1, the monthly income of the claimant should MACA.No.875/06 Page numbers have been taken as Rs. 5000/- . There is force in the above contention. 11. Taking into consideration the fact that the claimant is a driver by profession and as Ext.A14 is proved by PW2, we feel that his monthly income can be reasonably fixed at Rs. 4,000/-. As the claimant was aged 38 at the time of the accident, a multiplier of 16 would be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 7,68,000/- ( 4000 x 12 x 16). 12. Counsel for the appellant argued that no compensation was awarded for pain and suffering, loss of amenities, enjoyment of life , medical expenses, bystander's expenses and that therefore under those heads, compensation should be awarded to the claimant. In fixing his monthly income as Rs. 4,000/- per month, we have taken into consideration all these aspects. Therefore, we are not awarding any compensation under any other head. 13. In the result, the claimant is found entitled to an additional compensation of Rs.4,26,900/-. The claimant is entitled to interest @ 9% per annum from the date of petition till realisation and MACA.No.875/06 Page numbers proportionate cost. Out of the compensation awarded, Rs. 2,00,000/- shall be disbursed to the claimant as the counsel for the claimant submitted that some amount is required for continuing the treatment. 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 Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.875/06 Page numbers