IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 MACA.No. 1160 of 2004(G) -------------------------------------- OPMV.750/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): /PETITIONER: ------------------------------------------- OUSEPH M.V. @ VAREED JOSE @ JOSE, S/O. VAREED, MUTHIPEEDIKA HOUSE, (VALLISSERY DESOM & VILLAGE, AVANISSERY P.O.), PRESENT RESIDING AND RUNNING WORKSHOP (M.V.SCOOTER LAND), AT R.S. ROAD, IRINJALAKUDA P.O MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS: --------------------------------------------------- 1. JAMEELA, W/O. JALEEL, ELANNA HOUSE, CHENGAMANADU P.O. 2. DR. SUNNY VARGHESE, S/O. ABRAHAM, DAPPILUMANKUDIYIL HOUSE, NECHOOR P.O., MUVATTUPUZHA. 3. MANAGER, UNITED INDIA INSURANCE CO.LTD., KAP COMMERCIAL CENTRE, R.S. RAOD, ALUVA. 4. P.M. JOSE, KALAMKATTU PUTHUSSERY (H), ADUVASSERY, ALUVA. R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1160 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 28th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.750 of 1999 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated January 20, 2004 awarding a compensation of `3,74,500/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on January 31, 1999 at 3 p.m. at Kuriachira. While the claimant was riding a motor cycle bearing registration No.KLH 2049 from Thrissur to Ollur along the National Highway 47, a car bearing registration No.KCF 227, driven by the second respondent, collided head on with the motor cycle. The claimant sustained serious injuries. 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 compensation of ` 7,00,000/-. MACA 1160/2004 2 3. Respondents 1 to 3, the owner, driver and the insurer of the offending car, filed written statements admitting the accident and policy of the vehicle, but attributed negligence to the claimant. The fourth respondent the previous owner and insured of the offending car remained absent and he was set ex parte by the Tribunal. PWs.1 to 3 were examined and Exts.A1 to A24 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 ` 3,74,500/- with interest @ 6% p.a. from the date of petition till realization and proportionate cost. 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. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence MACA 1160/2004 3 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) Injury to medical and lateral collateral ligaments of right knee. 2) Injury to anterior and posterior cruciate ligaments of right knee. 3) Posterior capsular injury right knee. 4) Medical meniscus injury right knee. 5) Lacerated wound posterio lateral aspect of lower 3rd of leg with muscle injury. 6) Lacerated wound middle of anterior of right leg. 7) Lacerated wound posterior aspect of lower 3rd right leg. 8) Lacerated wound on medical aspect of right ankle with exposed tendons and skin loss. 9) Comminuted fracture shaft of lower 3rd of right femur. MACA 1160/2004 4 10) Compound injury right knee with fracture tibial tuberosity and partial avulsion of patellar tendon.” 7. The Tribunal awarded a total compensation of ` 3,74,500/-. Break up of the compensation awarded is as under:- Loss of earning : ` 27,000 Transportation expenses : ` 5,000 Medical expenses : ` 1,96,000 Bystander's expenses : ` 5,000 Pain and suffering : ` 20,000 Loss of amenities discomfort : ` 15,000 suffered and inconvenience caused. For permanent disfiguration : ` 5,000 Future medical treatment : ` 7,000 Disability : ` 94,500 ------------------ Total : ` 3,74,500 ======= 8. The counsel for the claimant sought enhancement of compensation for the disability caused, loss of amenities and enjoyment in life and also for future treatment. 9. The Tribunal took the monthly income of the claimant as ` 1,500/-, took the percentage of disability as 35 %, adopted multiplier of 15 and awarded a compensation of MACA 1160/2004 5 Rs.94,500/- for the disability caused. The claimant was aged 41 earning ` 4,000/- per month as a Mechanic, according to him. Ext.A16 is his identity card issued from the Association of Automobile Workshops Kerala. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at ` 2,500/-. In Ext.A14 certificate of disability issued by PW2 doctor it is seen that the claimant has suffered disability as 60%. He cannot now use his right leg for any work. He cannot walk without a walking aid and has deformity on his right leg. He suffered severe disability as described in Ext.A14. Taking into consideration th above aspects, we feel that the percentage of disability suffered by the claimant can be assessed as 50%. Multiplier adopted by the Tribunal as 15 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of ` 2,25,000/- . Thus the claimant is entitled to an additional compensation of ` 1,30,500/- on this count. 10. The Tribunal awarded ` 15,000/- for loss of MACA 1160/2004 6 amenities, discomfort suffered and inconvenience caused, which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant and the disabilities caused, we feel that a compensation of ` 35,000/- would be reasonable on this count. 11. The Tribunal awarded ` 20,000/- for pain and suffering endured by the claimant, which appears to be inadequate. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of ` 35,000/- would be reasonable on this count. 12. The Tribunal awarded ` 7,000/- for future medical treatment. The claimant produced documents to show that subsequently he underwent a plastic surgery in Elite Mission Hospital, Thrissur. He is still undergoing treatment. Taking into consideration the above facts, we feel that a compensation of Rs.75,000/- would be reasonable on this count. Thus on this count the claimant is entitled to an additional compensation of Rs.68,000/-. He is not entitled to any interest for this amount. MACA 1160/2004 7 13. The Tribunal awarded a sum of ` 27,000/- towards loss of income for 18 months at the rate of ` 1,500/- per month. As we have fixed monthly income of the claimant as ` 2,500/- he is entitled to a compensation of ` 45,000/- 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. 14. In the result, the claimant is found entitled to an additional compensation of ` 2,51,500/-. He is entitled to interest @ 7.5% per annum instead of 6% per annum awarded by the Tribunal for the compensation already awarded and also for the enhanced compensation from the date of petition till realization. As already pointed out that for the enhanced compensation for future treatment expense of Rs.68,000/- the claimant is not entitled to any interest. He is also entitled to 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 MACA 1160/2004 8 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