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 11TH JUNE 2010 / 21ST JYAISTHA 1932 MACA.No. 399 of 2004() ---------------------------------- OPMV.23/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ------------------------------------- JOHN JOSEPH, AGED 59 YEARS, S/O. JOSEPH, NEDUMGATTU HOUSE, THAZHUVANKUNNU P.O, MUVATTUPUZHA, ERNAKULAM. BY ADV. SRI.JOHNSON MANAYANI, SRI.PIUS K NEDUMGATTU. RESPONDENTS/RESPONDENTS ----------------------------------------------- 1. MANIKANTAN NAIR P.N., S/O. NARAYANAN NAIR, PULIKAYATH HOUSE, VELLAMBOOR P.O., PATTIMATTOM. 2. SABI PAUL, AGED 32, S/O. PAULOSE, KAKKATTIL HOUSE, MUZHUVANNOOR VILLAGE, EZHOOR KARA. 3. MANAGER, NATIONAL INSURANCE CO.LTD., P.B.NO.24, MULLAPPILLY BUILDINGS, A.M.ROAD, PERUMBAVOOR- 683 542. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 399 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 11th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P. (MV) No.23 of 2000 of Motor Accidents Claims Tribunal, Muvattupuzha challenges the judgment and award of the Tribunal dated November 22, 2003 awarding a compensation of Rs.1,18,300/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 56 at the time of the accident and used to earn Rs.4,000/- per month as an agriculturist, according to the claimant. On April 27, 1999 at about 11.15 a.m. the claimant was riding a motor cycle bearing registration No.KCE 5269 along Muvattupuzha - Thodupuzha road. At that time, a goods carriage bearing MACA 399/004 2 registration No.KL-7/J 3699, driven by the second respondent, came at high speed and collided head on with the motor cycle of the claimant. The claimant sustained serious injuries. According to him, the accident occurred due to the rash and negligent driving of the offending goods carriage by the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending goods carriage are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs. 5,30,000/-. 3. Respondents 1 and 2, the owner and driver of the offending vehicle remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement, admitting the policy, but contended that there was also negligence on the part of the claimant. 4. PW1 was examined and Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. No MACA 399/004 3 evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the rash and negligent driving of the offending goods carriage by the second respondent and awarded a compensation of Rs.1,18,300/- with interest at the rate of 9% per annum from the date of petition till realization and costs.. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the 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 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 claimant sustained the following injuries, as revealed from Ext.A3 copy of the accident-cum-wound MACA 399/004 4 certificate issued from St.George's Hospital, Vazhakulam and Ext.A4 accident-cum-wound certificate issued from M.O.S.C. Medical Mission Hospital, Kolenchery:- 1) Multiple abrasions. 2) Swelling (L) foot and (L) leg. 3) Pain (R) side of buttock. 4) Tenderness over symphysis pubic. X-ray showed that the petitioner has suffered segmental fracture (L) tibia and fracture interior ramus (R). He was admitted in the hospital on April 27, 1999 and was discharged on May 18, 1999. Ext.A11 certificate of disability shows that he has suffered permanent disability of 20%. PW1 doctor who issued Ext.A11 testified that the petitioner has shortening of left leg by 1 cm. and that the petitioner is unable to squat on the ground. 8. The Tribunal awarded a total compensation of Rs.1,18,300/-. Break up of the compensation awarded is as under :- Loss of earning : Rs. 15,000/- MACA 399/004 5 Damage to clothing : Rs. 300/- Transportation expense : Rs. 2,000/- Pain and sufferings : Rs. 20,000/- Loss of amenities and : Rs. 10,000/- enjoyment in life Treatment expenses : Rs. 65,000/- Extra-nourishment : Rs. 3,000/- Bystander's expense : Rs. 3,000/- -------------------- Total : Rs.1,18,300/- ======== 9. The learned counsel for appellant sought enhancement of compensation towards the disability caused and loss of amenities and enjoyment in life. 10. The tribunal took the monthly income of the claimant as Rs.1,500/- and rejected the claim of the claimant for compensation for the disability caused on the ground that PW1 doctor has testified that the shortening of leg can be corrected by wearing shoes; but he has certified that the claimant has suffered a permanent disability at 20%. Taking into consideration the nature of the injuries sustained and the permanent disability suffered by the claimant, we feel that the percentage of disability suffered by the claimant can be fixed at 10%. As the claimant is aged MACA 399/004 6 56, proper multiplier would be 8. Thus for the disability caused, the claimant is entitled to a compensation of Rs.14,400/-(Rs.1,500/- x 12 x 8 x 10%). 11. For the loss of amenities and enjoyment in life, the Tribunal awarded a compensation of Rs.10,000/-, which appears to be inadequate. Taking into consideration the nature of the injury sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs.15,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs.19,400/-. 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 vehicle, 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 MACA 399/004 7 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.