IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 MACA.No. 1067 of 2005() ----------------------- OPMV.707/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- JOSEPH @ ACHANKUNJU, THYPPARAMBIL HOUSE, POOVANTHURUTH P.O., KOTTAYAM. BY ADV. SRI.P.C.SEBASTIAN SRI.MARTIN G.THOTTAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. MINI K., W/O. JOHN, PARAPPURAM HOUSE, PAKKIL P.O., KOTTAYAM. 2. THE ORIENTAL INSURANCE CO. LTD., KOTTAYAM. 3. JOHN, PARAPURAM HOUSE, PAKKIL P.O., KOTTAYAM. ADV. SRI.SURIN GEORGE IPE FOR R1 & R3 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2009, ALONG WITH MACA NO. 1079 OF 2005THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- MACA No. 1067 & 1079 of 2005 --------------------------------------------- Dated, this the 22nd day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. Inadequacy of the compensation awarded by the Tribunal forms the subject matter of both these appeals. 2. The appellant in the MACA 1067/2005 was travelling as a pillion rider on a scooter ridden by his son who is the appellant, in the connected case. While proceeding as above on 28.01.2001 at 4.15 p.m. they entered the MC Road lying north to south from the eastern pocket road and turned to the right, i.e, towards the north when the Tata Sierra Car bearing No. KL-5G 4629 owned by the first respondent, driven by the 3rd respondent and insured by the 2nd respondent came and hit against the scooter causing injuries to both the riders which led to the separate claims which were tried together jointly. 3. The claims were resisted only from the part of the owner and insurer of the car. The evidence adduced before the Tribunal consists of the oral testimony of both the riders/claimants examined as PW1 and 2 and the documents marked as Exts.A1 to A30 produced from the part of the claimants; while no evidence oral or documentary MACA No. 1067 & 1079 of 2005 2 was adduced from the part of the respondents, particularly the insurer, despite the fact that permission was given under Section 170 of the Motor Vehicles Act to have wider defence as observed in paragraph 9 of the Award. 4. Based on the materials produced, the Tribunal observed that the road was lying north to south, that a bus was parked at the bus stop on the northern side of the meeting point of the eastern pocket road through which the rider was coming, the offending car came from the north overtaking the bus parked as above and it was at this point, that the rider of the scooter had taken the vehicle intending to proceed to the north along the MC Road, when the car suddenly knocked him down. It is also brought on record that the road lying north to south was having distant clear vision and the driver of the car was hardly having any vision in respect of the scooter which came from the pocket road lying east to west and entered the MC Road. Similarly, since the bus was lying parked as noted hereinbefore, the rider of the scooter was not in a position to see the car which was coming from the north and proceeded to overtake the bus. After analyzing the facts and figures, the Tribunal held that both the rider of the scooter, as well as the driver of the car, were not having enough vigil while riding the respective vehicles on the road and accordingly, negligence was apportioned in the ratio of 40:60 between the MACA No. 1067 & 1079 of 2005 3 rider of the scooter and driver of the car. The finding and reasoning given by the Tribunal appear to be very much correct and sustainable, which do not warrant any interference. 5. Coming to the fixation of quantum, the Tribunal observed that the pillion rider of the scooter (appellant in MACA 1067/2005) had suffered various injuries including head injury, resulting in a permanent disability of 25% as certified by the Medical Board attached to the Medical College Hospital, Kottayam. After considering the admitted age factor of the claimant as 50 years, adopting a multiplier of 8 and fixing the monthly income notionally at Rs.1,500/- compensation for permanent disability was worked out as Rs.37,440/-. The Tribunal awarded further amounts under other heads such as Rs.10,000/- towards loss of earning, Rs.7,650/- towards the transportation expenses (as against Rs.4,000/-) Rs.5,000 towards the extra nourishment, Rs.25,000/- towards the medical expenses, Rs.5,000/- towards bystander’s expenses and Rs.10,000/- towards the loss of amenities and enjoyment in life etc.; and granted a total sum of Rs.75,445/- being 60% of the eligible compensation by virtue of the apportionment on negligence. This amount has been directed to be satisfied with interest at the rate of 6% from the date of application. 6. Considering the rival contentions made by the learned counsel appearing for the appellant seeking for enhancement based on MACA No. 1067 & 1079 of 2005 4 the materials brought on record and also the submissions made from the part of the insurer seeking to sustain Award contending that adequate amounts have been awarded by the Tribunal, we find that the amounts awarded by the Tribunal under most of the heads are very much correct, adequate and reasonable. However, taking note of the extent of injuries sustained and the adverse consequences resulted, particularly in view of the certified extent of permanent disability, we find that some modification has to be made under a few heads. Accordingly, in MACA 1067/2005, in the case of pain and sufferings, instead of Rs.10,000/- we award a sum of Rs.15,000/- and in respect of loss of amenities and enjoyment in life, in place of Rs.10,000/- we award Rs.15,000/-; thus resulting in a balance sum of Rs.10,000/- (5,000+5,000). 7. In the case of the appellant in MACA 1079/2005, i.e., with regard to the case of the rider, a similar approach has been adopted by the Tribunal with regard to the fixation of quantum under various heads. True, in the said case, the certified permanent disability as borne by the disability certificate issued by the Medical Board is 17%; despite which the same was not given due regard by the Tribunal and absolutely no compensation was awarded in respect of the permanent disability. The reasoning given by the Tribunal is that the claimant therein was working as an ‘Assistant’ in the Malayala Manorama Daily and that the extent or MACA No. 1067 & 1079 of 2005 5 the disability has not attributed to any loss of earning capacity or the monthly income being derived by him, but for the loss of amenities and enjoyment in life, which has been separately compensated. Awarding amounts under different permissible heads, the Tribunal has granted a total sum of Rs.45,567/- being the 60% of the eligible compensation to the rider, based on the ratio of negligence fixed between the rider of the scooter and the driver of the car. However, we find that the Tribunal was not at all correct in denying the compensation for permanent disability in toto, but for granting a lump sum of Rs.10,000/-. Considering the fact that claimant is an able-bodied youth of 25 years and that there is considerable extent of permanent disability, which has definitely a bearing with regard to his future prospects, we find that he eligible to get a further sum of Rs.15,000/- under this head and we award the same. For loss of amenities and enjoyment in life, the Tribunal has awarded only Rs.10,000/-, which we enhance to Rs.15,000/-; thus resulting in a balance Rs.5,000/- under this head. 8. The fixation of negligence in the ratio of 40:60 between the rider of the scooter and driver of the car stands confirmed by this Court as mentioned already. In the said circumstances, the rider of the Scooter is entitled to get only 60% of the enhanced compensation as above. Thus, the appellant in MACA 1067/2005 will be entitled to get a sum of MACA No. 1067 & 1079 of 2005 6 Rs.6,000/- as the balance compensation and the appellant in the other appeal will be entitled to get further sum of Rs.12,000/- being the eligible extent of compensation based on the apportionment of negligence. Both the above enhanced amount as well as the amounts awarded by the Tribunal will carry interest at the rate of 7% from the date of application till payment. We direct the 2nd respondent insurer to satisfy the amount as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Both the appeals are allowed in part. No cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc