IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 MACA.No. 3107 of 2008() ----------------------- OPMV.23/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): PETITIONER: -------------------------------------------- LATHEEF, PALACKAL THUNDIYIL HOUSE, ANITHOTTAM BHAGOM, KANJIRAPPALLY VILLAGE, KOTTAYAM. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. JOJO JAMES, THEKKEDATHIL HOUSE, KURUMALLOOR P.O., KANAKKARI, MEENACHIL TALUK. 2. BINOY JACOB, KUZHIPPIL HOUSE, ERAVIMANGALAM, MUTTUCHIRA BHAGOM, MANJOOR VILLAGE. 3. THE UNITED INDIA INSURANCE CO.LTD.,KOTTAYAM. R1 BY ADVS.SRI.MATHEW JOHN (K), SRI.DOMSON J.VATTAKUZHY. R2 BY ADV. SRI.E.M.MURUGAN R3 BY ADV. SMT.S.JAYASREE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 3107 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 3rd day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.23 of 2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. In this appeal he challenges the judgment and award of the Tribunal dated September 19, 2008 awarding a compensation of ` 1,17,440/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on October 14, 2005 at about 9 p.m. The claimant was the driver of a lorry. While the claimant was going towards his lorry parked on the side of M.C. Road, Kottayam, he was knocked down by a motor cycle bearing registration No.KL-5/L 3847, ridden by the second respondent. He sustained serious injuries in the accident. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a MACA 3107/2008 2 compensation of ` 4,50,000/-. 3. First respondent, the owner of the offending motor cycle, filed a written statement admitting the accident, but denied the liability. Second respondent, the driver of the offending motor cycle, remained absent and he was set ex parte by the Tribunal. Third respondent, the insurer of the offending motor cycle, filed a written statement admitting the policy. PWs.1 to 3 were examined and Exts.A1 to A13 and Ext.X1 series were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent and awarded a compensation of ` 1,17,440/- with interest @ 7.5% p.a. from the date of petition till realization and a cost of ` 3,500/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. MACA 3107/2008 3 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The claimant sustained the following injuries in the accident:- 1) Fracture lower 1/3rd (Lt.) Type II. 2) Femur supracondylar fracture left femur -AP. 3) Multiple injuries over his body. 7. The Tribunal awarded a total compensation of ` 1,17,400/-. Break up of the compensation awarded is as under:- Loss of earning : ` 9,000 Medical expenses : ` 36,340 Transport to hospital : ` 2,000 Extra nourishment : ` 1,000 Damage to clothing : ` 500 Bystander's expenses : ` 5,000 Pain and suffering : ` 18,000 Loss of amenities and : ` 6,000 enjoyment in life. Disability : ` 39,600 ------------------ MACA 3107/2008 4 Total : ` 1,17,440 ======= 8. The counsel for the claimant sought enhancement of compensation for the disability caused, for loss of amenities and enjoyment in life, for pain and suffering endured and on other heads. 9. The Tribunal took the monthly income of the claimant as ` 3,000/-, took the percentage of disability as 10%, adopted a multiplier of 11 and awarded a compensation of ` 39,600/- for the disability caused. The claimant was aged 55 at the time of the accident and used to earn ` 7,000/- per month as a driver, according to him. Ext.A7 is his salary certificate. His employer was examined as PW3. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at ` 3,500/-. The multiplier of 11adopted by the Tribunal appears to be reasonable. As regards the percentage of disability caused, Ext.A6 certificate of disability issued by the Lecturer in Orthopedics, Medical College Hospital, MACA 3107/2008 5 Kottayam shows that the claimant has a disability of 16%. Taking into consideration the nature of the disability caused too the claimant, we feel that the percentage of disability assessed by PW1 as 16% appears to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of ` 73,920/- (` 3,500/- x 12 x 11 x 16%). Thus the claimant is entitled to an additional compensation of ` 34,320/- on this count. 10. The Tribunal awarded ` 6,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of ` 20,000/- would be reasonable on this count. 11. ` 18,000/- was awarded by the Tribunal for pain and suffering, which appears to be very low. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of ` 25,000/- would be reasonable on this count. 12. The claimant produced bills worth ` 26,402/- for MACA 3107/2008 6 having continued his treatment after the O.P. was disposed of by the Tribunal. The bills and certificates produced by the claimant are marked as Ext.X1 series. Therefore, we feel that an additional compensation of ` 26,000/- would be reasonable for the treatment expenses. 13. The certificate issued by the doctor, Chazhikattu Hospital, Thodupuzha shows that the claimant needs treatment in future, for which he is entitled to a compensation of Rs.10,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 14. In the result, the claimant is found entitled to an additional compensation of ` 91,000/- with interest @ 7.5% per annum from the date of petition till realization and proportionate costs. The third respondent being the insurer of the offending vehicle shall deposit the amount 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. MACA 3107/2008 7 The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn