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 23RD MARCH 2010 / 2ND CHAITHRA 1932 MACA.No. 1798 of 2005() ----------------------- (O.P(MV).NO.433/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM) .................... APPELLANT/APPLICANT: ------------------------------------- MOHANAKUMAR, AGED 44, S/O.CHELLAPPA PANICKER, P.C.P.SADANAM, PARUTHIPPALLY P.O., THIRUVANANTHAPURAM-695 574. BY ADV. SRI.R.T.PRADEEP. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. AJITH KUMAR, CHAITHANYA, T.C.15/392, EDAPAZHENJI, THIRUVANANTHAPURAM. 2. THE MANAGER, UNITED INDIA INSURANCE CO LTD., MALANKARA BUILDING, DIVISIONAL OFFICE NO.II, IIND FLOOR, PALAYAM, THIRUVANANTHAPURAM. R2 ADV. SRI.P.M.M.NAJEEB KHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1798 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 23rd day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV) No.433 of 2001 of Motor Accidents Claims Tribunal, Thiruvananthapuram challenges the judgment and award of the Tribunal dated November 25, 2004, awarding a compensation of Rs.37,000/- 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 40 at the time of the accident. He was working as a Lift Operator in the Corporation of Thiruvananthapuram and was earning Rs.4,500/- per month, MACA 1798/2005 2 according to the claimant. On January 29, 2001 at about 10.45 a.m. while the claimant was walking along the road and reached near the East Fort Police Aid Post, he was knocked down by a motor cycle bearing registration No.KL- 01 P 7025, ridden and owned by the first respondent. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending motor cycle by the first respondent. First respondent as the rider-cum-owner and second respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.1,50,000/-. 3. First respondent, rider-cum-owner of the offending motor cycle remained absent and was set ex parte by the Tribunal. The second respondent, the insurer of the offending motor cycle, filed a written statement, admitting the policy. 4. The claimant was examined as PW1 and Exts.A1 MACA 1798/2005 3 to A7 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent before the Tribunal. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs.37,000/-. 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 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 first 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 Tribunal awarded a total compensation of Rs.37,000/-. Break up of the compensation awarded is as under :- Loss of earning : Rs.5,700/- MACA 1798/2005 4 Medical and incidental : Rs.1,000/- expenses. Transportation expenses : Rs.500/- Damage to clothing : Rs.250/- Bystander's expense : Rs.500/- Extra nourishment. : Rs.500/- Pain and sufferings : Rs.12,000/- Loss of amenities and : Rs.5,000/- enjoyment in life. Permanent disability : Rs.11,520/- -------------------- Total : Rs.36,970/- Rounded to ; Rs.37,000/- ======== 8. The learned counsel for appellant sought enhancement of compensation towards the disability caused. Claimant sustained a bimalleolar fracture of the left ankle. Open reduction and internal fixation were done, as revealed from Ext.A3 copy of the wound certificate. Ext.A4 is the referal O.P. card issued from the hospital. Ext.A7 the disability certificate issued by the Asst. Professor, Orthopedics, Medical College Hospital shows that the claimant has pain and swelling on the ankle joint on prolonged walking and he has difficulty in standing and squatting. The doctor has certified that the claimant has MACA 1798/2005 5 permanent disability at 8%. Ext.A5 is the salary certificate to the effect that he was drawing a salary of Rs.3,600/- during November, 2002, as a Lift Operator in the Corporation of Thiruvananthapuram. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/- and percentage of disability as 6% and adopted a multiplier of 8 and awarded a compensation of Rs.11,520/- for the disability caused. The Tribunal took his monthly income as Rs.3,000/-, but for assessing the compensation for disability caused, the Tribunal took the income only as Rs.2,000/- per month, which appears to be not correct. We feel that his monthly income can be assessed as Rs.3,000/-, as found by the Tribunal for awarding a compensation for loss of earnings. The disability assessed by the Tribunal as 6% appears to be reasonable. The Tribunal adopted a multiplier of 8. The claimant was aged only 40 at the time of the accident. Therefore, multiplier of 10 would be reasonable. Thus, for the disability caused the claimant is entitled to a compensation MACA 1798/2005 6 of Rs.21,600/- (Rs.3,000 x 12 x 10 x 6/100). Thus, the claimant is entitled to an additional compensation of Rs.10,080/-under this head. 10. For the loss of earnings, the Tribunal awarded Rs.5,700/-, the salary for 57 days. Taking into consideration the nature of the injury sustained, we feel that the claimant would have been disabled for more than three months, for which we feel that a compensation of Rs.10,000/- would be reasonable. Thus on this count the claimant is entitled to an additional compensation of Rs.4,300/-. Regarding compensation granted under other heads, we find the same just and proper and therefore, we are not disturbing the same. 11. In the result, the claimant is entitled to Rs.14,300/- as additional compensation. He is entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. The second respondent being the insurer of the offending motor cycle shall deposit the amount before the Tribunal within two months from the MACA 1798/2005 7 date of receipt of a copy of this judgment. 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.