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 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 MACA.No. 2842 of 2009() ----------------------- OPMV.558/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER ------------------------- NIMESH,S/O.MUKUNDAN MENON,DWARAKA, N.A.D.JN.,EDATHALA NORTH.P.O,ALUVA. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS/RESPONDENTS -------------------------- 1. THE DEPUTY DIRECTOR,KERALA STATE HEALTH SERVICES,THIRUVANANTHAPURAM. 2. THE UNITED INDIA INSURANCE CO.LTD, DIVISIONAL OFFICE, ALUVA,P.B.NO.42,GOVT.HOSPITAL JN.,ALUVA. GOVERNMENT PLEADER FOR R1 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. ------------------------- M.A.C.A No.2842 of 2009 -------------------------- Dated this the 25th February, 2010 J U D G M E N T Barkath Ali,J. Challenge in this appeal by the claimant under Section 173 of the Motor Vehicles Act is to the judgment and award of the Motor Accidents Claims Tribunal Perumbavoor in O.P. (MV) No.558 of 2002 dated February 28, 2007 awarding a compensation of Rs.9,83,910/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to the appeal in brief are these: The claimant was a student aged 19. On December 3, 2001 at about 3.30 a.m. he was accompanying the dead body of his father from Chennai to Aluva in an Ambulance Van bearing Reg. No.KL- 01/1153 When the ambulance reached near the check post at Salem on the Gudalloor National Highway due to the negligence of the driver, the van dashed against a tree on the side of the road. The claimant and his relatives who are in the van sustained serious injuries. Both of his M.A.C.A No.2842 of 2009 2 legs were amputated below knee level. According to the claimant, the accident occurred due to the negligence on the part of the driver of the Ambulance Van. The first respondent as the owner, the 2nd respondent as the insurer of the of the offending van are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.9,89,700/-. The 2nd respondent, the Insurance Company filed a statement admitting the policy but denying the liability. 3. The O.P. was jointly tried along with the O.Ps filed by other injured persons by the Tribunal. PWs 1 to 9 were examined and Exts.A1 to A37 were marked for the claimants. Exts. B1 and B2 were marked for the contesting 2nd respondent. Exts X1 and X1(a) were also marked. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.9,83,910/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. The Tribunal awarded compensation as follows: M.A.C.A No.2842 of 2009 3 Loss of income - Rs. 24,000 Transportation expenses - 10,000 Treatment expenses - 179,910 Extra nourishment - 5,000 Bystander expenses - 25,000 Pain and suffering - 50,000 Disfiguration - 25,000 Loss of amenities - 25,000 Purchase of artificial limbs - 1,56,000 Periodical removal of socket - 50,000 Compensation for 100% disability - 3,84,000 Marriage prospects - 50,000 ------------------------------ 9,83,910 ============= 4. The claimant sustained crush injury to both legs. His right leg was amputated at Sri. Gokulam Hospital, Salem and left leg from the Specialist's Hospital, Ernakulam. Ext.A6 is the case summary issued from the M.A.C.A No.2842 of 2009 4 Specialist's Hospital. He was admitted in the hospital on 4.12.2001 and was discharged on 22.1.2002. He was aged 19 and was studying in the Pre-Degree Course. Now he is walking with artificial limb. Though in the appeal memorandum the appellant disputed the compensation awarded under all the counts at the time of argument, the counsel for the appellant mainly disputed the quantum of compensation awarded for the disability caused. The Tribunal fixed the monthly income of the claimant as Rs.2000/- and adopted a multiplier of 16 and awarded Rs.3,84,000/- taking his disability as 100%. 5. The counsel for the appellant citing the decisions in New India Insurance Co. Ltd Vs. Smt. Kalpana & Others [AIR 2007 SC 1243] and in Sarala Varma and Others Vs. Delhi Transport Corporation and Another [2009 (6) SCC 121] argued that the monthly income of the claimant should have been taken as Rs.3000/- per month and the future prospective increase in his income should have been taken into account. In New India Insurance Co. Ltd Vs. Kalpana & Others [ AIR 2007 SC 1243] the apex court has M.A.C.A No.2842 of 2009 5 taken the monthly income of a person without any job as Rs.3000/-. In Sarala Varma's case (supra) the apex court has held that future prospects of the deceased should be taken into consideration in determining the income of the claimant. In the present case the claimant PW1 was aged only 19 at the time of accident and was studying in Pre- degree course. As PW1 he would say that he was working as a salesman in a shop and now he is working in a Civil Engineering workshop as part-time. Taking into consideration all the aspects and in the light of the principles laid down in the above decisions, we feel that the income of the appellant/claimant can be fixed as Rs.3000/- per month. The multiplier adopted by the Tribunal is not seriously disputed. Thus calculated the claimant is entitled to Rs.5,76,000/- for the disability caused and loss of earning power. Thus on this count, the claimant is entitled to an additional compensation of Rs.1,92,000/-. 6. Regarding the interest, there is delay of 875 days in filing the appeal. The claimant is not entitled to any interest during that period if the 3rd respondent company M.A.C.A No.2842 of 2009 6 deposit the amount within one month from this date failing which he will be entitled to interest at the rate of 9% per annum from the date of petition till realisation including the delay period. 7. Thus the appellant/claimant is entitled to an additional compensation of Rs.1,92,000/- with interest at the rate of 9% per annum from the date of petition till realisation and proportionate costs. As found above the claimant will not be entitled to interest for 875 days if the 3rd respondent deposits the amount within one month from this date. The 3rd respondent, Insurance Company shall deposit the amount before the Tribunal within a period of one month from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to that extent. The appeal is disposed of, as found above. A.K.BASHEER,JUDGE P.Q. BARKATH ALI, JUDGE ma M.A.C.A No.2842 of 2009 7 M.A.C.A No.2842 of 2009 8