IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 MACA.No. 342 of 2004() ---------------------- OPMV.351/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANTS/ PETITIONERS IN OP(MV): ------------------------------------------------------------ 1. BUKHARY, PUTHENKADA VEEDU, VATTAPPARA, CHERIYA, VELLANALLOOR P.O.,VELINALLOOR VILLAGE. 2. SABU,S/O. BUKHAARY, PUTHENKADA VEEDU, VATTAPPARA, CHERIYA, VELLANALLOOR P.O.,VELINALLOOR VILLAGE. BY ADVS. SRI.T.KURIAKOSE PETER, SRI.ABRAHAM P.GEORGE, SRI.K.VINOD KUMAR. RESPONDENT(S): RESPONDENTS IN OP(MV): --------------------------------------------------------------------- 1. RAZIYA BEEGUM, W/O. ABDUL SALAM, PANAYIL PUTHEN VEEDU, CHERIYA VELINALLOOR, P.O.MANKONAM, OYOOR. 2. SHAJAHAN S/O. ABDULKAREEM, KUTTIMEL PUTHEN VEEDU, CHERIYAVELINALLOOR P.O., OYOOR. 3. DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., KOLLAM. R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 342 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 22nd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P. (MV) No.351 of 1999 of Motor Accidents Claims Tribunal, Punalur challenge the judgment and award of the Tribunal dated July 25, 2003 awarding a compensation of Rs.43,000/- for the loss caused to them on account of the injuries sustained by second claimant in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The second claimant was a minor boy, aged 14 at the time of the accident. He was represented by his father, second claimant. On October 25, 1996 at about 6.30 p.m. while the second claimant was cycling along the Ambalamkunnu – Roadvila public road and when he reached at Chenkur, he was knocked down by a jeep bearing MACA 342/2004 2 registration No.KL/02/B/3884, driven by the second respondent. He sustained serious injuries. According to the claimants, the accident occurred due to the rash and negligent driving of the offending jeep by the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the minor second claimant. The claimants claimed a compensation of Rs. 1,50,000/- 3. Respondents 1 and 2, the owner and driver of the offending jeep, remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending jeep filed a written statement, admitting the policy. 4. Second claimant was examined as PW1 and Exts.A1 to A9 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of evidence, awarded a compensation of MACA 342/2004 3 Rs.43,000/- with 9% interest per annum from the date of petition till realization. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimants and the counsel for 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 second respondent, driver of the offending jeep, 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 second claimant sustained the following injuries as revealed from Ext.A4 copy of the wound certificate issued from the Holy Cross Hospital, Kottayam:- “1) Loss of upper (right) incisor tooth. 2) Suspected fracture shaft of (right) humerus. 3) Suspected both bones fracture (right) forearm lower one third. MACA 342/2004 4 4) Suspected fracture shaft of (left) radius lower one third. 5) Communited fracture shaft of (left) femur. 6) Acromicclavicular disruption (left). 7) Abrasion 2 x 1 cm. root of nose. 8) Lacerated wound 2 x 0.5 cm. (right) big toe. 9) Abrasion 8 x 4 cm. (left) forearm.” Ext.A6 is the copy of the I.P. Card issued from the hospital. He was admitted on October 25, 1996 and discharged only on December 1, 1996. Ext.A8 certificate of disability showed that the second claimant has suffered a permanent disability at 18%. 8. The Tribunal awarded a total compensation of Rs.43,500/-. Break up of the compensation awarded is as under :- Transportation expense : Rs. 1,000/- Extra-nourishment : Rs. 1,000/- Bystander's expense : Rs. 1,500/- Medical expense : Rs. 3,000/- Pain and sufferings : Rs.10,000/- Permanent disability : Rs.27,000/- -------------------- Total : Rs.43,500/- ======== MACA 342/2004 5 9. The learned counsel for appellants/claimants sought enhancement of compensation towards the disability caused, pain and suffering etc. He would say that the Tribunal took the percentage of disability as 12% without assigning any reason. We find force in the above contention. 10. The Tribunal took the monthly income of the second claimant as Rs.1,250/-, adopted a multiplier of 15, took the percentage of disability as 12% and awarded Rs.27,000/- for the disability caused. The monthly income of the second claimant taken as Rs.1,250/- and multiplier adopted by the Tribunal as 15, appear to be reasonable. As regards the percentage of disability, Ext.A8 certificate of disability shows that he has a permanent disability of 18%, which appears to be reasonable in view of the disabilities caused to the second claimant. Thus calculated for the disability caused and for the consequential loss of earning power the second claimant is entitled to a compensation of Rs.40,500/- (Rs.1,250/- x 12 x 15 x 18%). Thus, on this count, the second claimant is entitled to an additional MACA 342/2004 6 compensation of Rs.13,500/-. As regards the compensation granted under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result, the second claimant is found entitled to an additional compensation of Rs.13,500/-. He is entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending lorry, 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 claimant. 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.