IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 MACA.No. 31 of 2005(B) ---------------------------------- OP(MV).NO.1218/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/ PETITIONER: -------------------------------------- PAUL, S/O. VARGHESE, KALLINGAL HOUSE, CHALAKUDY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY, ADV. SRI.A.N.SANTHOSH. RESPONDENTS/ RESPONDENTS IN OP (MV): ---------------------------------------------------------------- 1. ABDU SAMAD, KOCHUPARAMBIL HOUSE, KOOLIMUTTOM P.O. 2. SAJITHA ABDU SAMAD, KOCHUPARAMBIL HOUSE, KOOLIMUTTOM P.O. 3. MANAGER, ORIENTAL INSURANCE CO., ANGAMALY. 4. JACOB N.O., NANGINI HOUSE, CHALAKUDY P.O. 5. MANAGER, ORIENTAL INSURANCE CO., CHALAKUDY. R3 BY ADV. SRI.V.P.K.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.31 OF 2005 ------------------------------------- Dated 7th November, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident on 7.8.1998. The incident occurred while he was travelling as a pillion rider in a motor cycle. The above motor cycle was hit by a car driven by the second respondent and insured by the third respondent insurance company. The motor cycle in which the appellant was travelling was insured by the fifth respondent insurance company. The motor cycle was ridden by the fourth respondent. The Tribunal found that there were two pillion riders in the motor cycle and there was negligence on the part of the appellant in travelling as a second pillion rider. Therefore, 20% was deducted from the compensation awarded. Respondents 1 to 3 were directed to deposit 50% of the compensation and 30% was directed to be deposited by respondents 4 and 5. The liability of the insurance company was not denied and none of the respondents filed appeal. Only quantum of compensation and finding of negligence are questioned in this appeal. Since the appellant was a second pillion rider knowing that it is against rules and that itself is negligence, the Tribunal found that at least 20% negligence can be attributed on the appellant. We see no ground to interfere in the above finding. With regard to the quantum of compensation awarded, the appellant was a conductor of KSRTC and his MACA.31/2005 2 monthly income was Rs.3,843/=. The Tribunal accepted the same and for calculating actual loss of earnings Rs.3,000/= was taken as the monthly income as balance amount is taken towards travelling expense as a conductor which he need not be spent when he is in the home. We see no ground to interfere in the same. Considering the injuries and the disability certificate produced, 15% disability was assessed by the Tribunal, but, did not grant compensation on the basis of the monthly income and age of the claimant at the time of the accident. He was aged only 39 at the time of the accident. If 39 is taken as the age, 16 would be the multiplier as per the second schedule. The Tribunal has taken only 8 as the multiplier considering the fact that he did not loss his employment But, considering the fact that after retirement also he can work as age of retirement is only 55, we see no ground to change the multiplier fixed by the Tribunal. An experienced conductor after the age of 55 can get another job and we are of the opinion that Rs.2,500/= should have been taken as the monthly income after the retirement at least for eight years. If that be so, compensation payable is Rs.36,000/= (2500 x 12 x 15 x 8). 100 After deducting Rs.21,600/= awarded by the Tribunal, the additional compensation payable for permanent disability and loss of earning power will be Rs.14,400/=. For pain and suffering Rs.7,500/= was awarded by the Tribunal. The appellant had sustained a fracture and undergone surgery. He was in the hospital for 17 days. We are of MACA.31/2005 3 the opinion that at least Rs.10,000/= ought to have been awarded for pain and suffering. Therefore, the additional compensation payable under that head will be Rs.2,500/=. For loss of amenities also only Rs.3,000/= was awarded. He has to work with the disability and suffer the disability till his death. Considering the nature of injuries, we are of the opinion that another Rs.3,000/= ought to have been awarded for loss of amenities. For extra nourishment and bystander's expense only Rs.1,700 was awarded. We award Rs.100/= more under that head. Thus, additional compensation payable will be Rs.20,000/=. Out of the above amount, 20% has to be deducted towards contributory negligence and the balance will come to Rs.16,000/=. From this amount, Rs.10,000/= should be deposited by the third respondent insurance company and Rs.6,000/= by the 5th respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the amount decreed by the Tribunal. On deposit of the amount, the appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks