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 10TH FEBRUARY 2010 / 21ST MAGHA 1931 MACA.No. 327 of 2007() ---------------------- OPMV.1334/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER ---------------------------------- SASIDHARAN, S/O.KANNAN, CHANTHAPADATH HOUSE, P.O.MANNAM, NORTH PARUR. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENT(S): RESPONDENTS -------------------------- 1. SUGUNA JAYARAJAN, 12,NEHRU NAGAR, PONDICHERY. 2. K.R.PRADEEP KUMAR, S/O.RAMAN, KOLLATTY HOUSE, P.O.VAILATHUR. 3. THE MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, SREE VALLEY BUILDING, 2ND FLOOR, ANICODE JUNCTION, CHITTUR. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2010 ALONG WITH MACA 338/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------------------- M.A.C.A. 327 & 338 of 2007 ------------------------------------------------------------------- Dated: FEBRUARY 10, 2010 JUDGMENT Barkath Ali, J. In M.A.C.A. 327 of 2007 the claimant in OP(MV) 1334/2000 of Motor Accidents Claims Tribunal, Irinjalakuda, challenges the judgment and award of the Tribunal dated November 30, 2005 granting a compensation of Rs.32,593/- for the loss caused to him on account of the injuries sustained in a motor accident. In M.A.C.A. 338 of 2007 the claimant in OP(MV) 1335/2000 of the same Tribunal challenges the same judgment and award of the Tribunal granting a compensation of Rs.71,054/- for the loss caused to him on account of the injuries sustained in the motor accident. 2. The facts in brief are these: On September 21, 2000 at about 2.45 p.m. the claimant in OP(MV) 1335/2000 was riding and the claimant in OP(MV) 1334/2000 was pillion riding on the motorcycle bearing registration No.KL-7/A 509 on Kodungallur - Irinjalakuda road. At that time a Maruthi car bearing registration No.PY 01/C 8209 driven by the 2nd respondent in the OP(MV) and owned by the 1st respondent came at a high speed and dashed against the motorcycle of the appellants/claimants. The appellants sustained serious injuries. The accident occurred due to the rash and negligent M.A.C.A. 327 & 338 of 2007 2 driving of the offending Maruthi car by its driver, the 2nd respondent. The car was insured with the 3rd respondent Insurance Company. The claimant in OP(MV) 1334/2000 claimed a compensation of Rs.1,20,000/- while the other claimant claimed a compensation of Rs.1,50,000/-. 3. The owner of the motorcycle also has filed OP(MV) 36/2002 claiming Rs.13,361.35 for the damage caused to the motorcycle. 4. The 1st respondent, owner of the offending car, remained absent and was set ex parte. The 2nd respondent in his written statement contended that the rider of the motorcycle had no driving licence and that the accident occurred due to his negligence. The 3rd respondent, insurer of the offending vehicle, filed a written statement admitting the policy. 5. The Tribunal by a common award dated November 30, 2005 granted a compensation of Rs.32,593/- to the claimant in OP(MV) 1334/2000, Rs.71,054/- to the claimant in OP(MV) 1335/2000 and Rs.5930/- to the claimant in OP(MV) 36/2002. The claimants in OP (MV) 1334/2000 and OP(MV) 1335/2000 have come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard counsel for the appellants and that of the contesting Insurance Company. M.A.C.A. 327 & 338 of 2007 3 7. The accident was not disputed. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the offending car by the 2nd respondent is not challenged in this appeal. Therefore the only question which arises for consideration is whether the appellants/claimants are entitled to any enhancement of compensation. 8. In OP(MV) 1334/2000 the Tribunal awarded compensation as follows:- cost of extra nourishment and wages to attendants - Rs.1100/- transportation - 300 medical expenses - 3993 loss of earning for three months - 4500 pain and suffering - 9000 loss of amenities - 2000 permanent disability - 11700 -------------- Total 32593 ========= 9. The claimant in this case has sustained fracture of both bones blow right knee, ligament injury or right ankle and also lacerated injury and also lacerated injury on the left eyebrow as seen from Ext.A11 wound certificate and Ext.A12 treatment certificate. Ext.A13 disability certificate shows that he has suffered a permanent disability of 7%. M.A.C.A. 327 & 338 of 2007 4 He has sustained chronic synovitis of right ankle, stiffness of right ankle, dorsiflexion restricted at terminal 10° as described in Ext.A13. The Tribunal took his permanent disability only at 5%. As a contract worker his monthly income was assessed at Rs.1500/- by the Tribunal and awarded a compensation at Rs.11700/- towards the disability caused. As a contract worker, in our view, he would have earned atleast Rs.100/- per day. Therefore his monthly income can be reasonably fixed at Rs.2000/-. As he was aged 48, the Tribunal adopted a multiplier of 13 which is not seriously challenged. Thus calculated, for the disability caused he is entitled for a compensation of Rs.15,600/-. Thus on this count he is entitled to an additional compensation of Rs.3900/-. 10. Towards loss of earnings, a compensation of Rs.4500/- was granted i.e. for three months at the rate of Rs.1500/-. As we have fixed his monthly income as Rs.2000/-, towards loss of earnings he is entitled to a compensation of Rs.6000/- i.e. an additional compensation of Rs.1500/-. 11. For pain and suffering the Tribunal has awarded a compensation of Rs.9000/- which appears to be very low. Having regard to the nature of the injuries sustained, we feel that a compensation of Rs.12,000/- would be adequate on this count. M.A.C.A. 327 & 338 of 2007 5 Therefore under this count the claimant is entitled to a further compensation of Rs.3000/-. 12. For loss of amenities/enjoyment of life, the Tribunal awarded a compensation of Rs.2000/-. Taking into account the nature of the injuries sustained, we feel that towards loss of amenities/enjoyment of life, he is entitled to a compensation of Rs.4000/-. Thus on this count he is entitled to an additional compensation of Rs.2000/-. 13. Thus the appellant in MACA 327/2007 is entitled to an additional compensation of Rs.10,400/-. 14. The appellant in MACA 338/2007 (claimant in OP(MV) 1335/2000) was a businessman aged 31. The Tribunal awarded a compensation as follows:- cost of extra nourishment Rs.3,500 transportation 200 medical expenses 29,494 loss of earnings 4,500/- pain and suffering 12,000 loss of amenities 3,000 permanent disability 18,360 ------------------- Total 71,054 =========== M.A.C.A. 327 & 338 of 2007 6 15. The claimant in this case sustained fracture of both bones of left leg, haemathrosis right knee, multiple small laceration in the exterior and posterior aspect of right lower leg and other bodily injuries. Ext.A4 is the wound certificate, Ext.A6 is the treatment certificate and Ext.A7 is the disability certificate. 16. The Tribunal took his monthly income as Rs.1500/-, adopted a multiplier of 17 and percentage of disability at 6% and awarded a compensation of Rs.18,360/- for the permanent disability caused. Taking into account the fact that the appellant was a businessman aged 31, we feel that his monthly income can be reasonably estimated at Rs.2000/-. Thus calculated, the appellant in this appeal is entitled to a compensation of Rs.24,480/- towards the disability caused i.e. additional compensation of Rs.6120/-. A sum of Rs.4500/- was awarded towards loss of earnings i.e. for three months at the rate of Rs.1500/- per month. As we have found that the monthly income of the claimant/appellant can be fixed at Rs.2000/- per month, towards loss of earnings he will be entitled to a compensation of Rs.6000/- i.e. additional compensation of Rs.1500/-. For the loss of amenities/enjoyment of life, we feel that a compensation of Rs.6000/- will be adequate. The Tribunal awarded only Rs.3000/-. Therefore towards loss of amenities of life, the M.A.C.A. 327 & 338 of 2007 7 appellant in this appeal is entitled to a further compensation of Rs.3000/-. Thus calculated, the appellant/claimant in this appeal is entitled to an additional compensation of Rs.10,620/-. 17. The claimants are entitled to interest at the rate of 7.5% per annum from the date of petition till realisation and proportionate costs. The 3rd respondent shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the appellants/claimants. Both the appeals are disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-