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 9TH APRIL 2010 / 19TH CHAITHRA 1932 MACA.No. 959 of 2004() ---------------------- OPMV.354/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/PETITIONER ---------------------------------- NARAYANAN, AGED 55 YEARS, S/O. KRISHNAN,U.M.A. BLOCKS, G.B.ROAD, ERIMAKKARA STREET, PALAKKAD DISTRICT. BY ADV. SRI.T.A.RAJAGOPALAN RESPONDENT(S): RESPONDENTS -------------------------- 1. A.HASSAN, AGED 25 YEARS, S/O. IBRAHIM, CHEKIDANKAVU, KADAMKODE, PALAKKAD DISTRICT (DEIVER OF AUTO RICKSHAW NO.KL9/7570) DL.NO.565/68, BADGE NO.253/71. 2. A.NOUSHAD, AGED NOT KNOWN, S/O. AHAMMED YOUSUF, PEZHUMKARA, PALAKKAD TALUK, (R.C.OWNER OF AUTORICKSHAW-KL9/7570) 3. M.JANAYATH KHAN, AGED NOT KNOWN, S/O. MUSTHAFA KHAN, DIARA STREET, NORTHERN SIDE OF THE MUNICIPAL BUS STAND, PALAKKAD. (PRESENT OWNER OF THE AUTORICKSHAW KL-9/7570) 4. THE ORIENTAL INSURANCE CO.LTD., SHOBA, T.S.M.COMPLEX, V.H.ROAD, PALAKKAD POLICY NO.441102/227/429/MV/2785/96. CERTI.NO.CVP/2667/96. VALID FROM 12-7-95 TO 11-7-96). ADV. SRI.M.JACOB MURICKAN FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 959 of 2004 ------------------------------------------------------ Dated: APRIL 9, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 354/1996 of the Motor Accidents Claims Tribunal, Palakkad, challenges the judgment and award of the Tribunal dated January 31, 2004 awarding a compensation of Rs.59,750/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these: On December 22, 1995 at about 2.30 p.m. while the claimant was walking along the side of the College Road, Palakkad, he was knocked down by an autorickshaw bearing registration No. KL 9/7570 driven by the 1st respondent. He sustained very serious injuries. According to the claimant the accident occurred due to the negligence on the part of the driver of the autorickshaw, the 1st respondent. The 1st respondent as the driver and the 2nd respondent as the R.C. owner, 3rd respondent as the present owner and the 4th respondent as the insurer of the offending autorickshaw are jointly and severally liable to pay the compensation to the claimant. 3. Respondents 1 to 3 - driver, R.C. owner and the present owner of the autorickshaw respectively- remained absent and were M.A.C.A. 959 of 2004 2 set ex parte by the Tribunal. The 4th respondent, insurer of the offending vehicle, filed a written statement admitting the accident. PW.1 was examined and Exts.A1 to A13 series were marked on the side of the claimant. On the side of the contesting 4th respondent, Ext.B1 was marked. 4. Heard the counsel for the appellant/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 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. 6. The claimant sustained the following injuries as revealed from Ext.A5 copy of the wound certificate issued from the District Hospital, Palakkad:- “Compound fracture left humerous. Fracture ribs left side and bleeding from left ear.” Ext.A8 series are copies of discharge certificates issued from the Medical College Hospital, Thrissur. He was in the hospital from December 22, 1995 to January 6, 1996 and again from January 10, 1996 to January 22, 1996. Open reduction and internal fixation were M.A.C.A. 959 of 2004 3 done. He had blunt injury on the abdomen and laporatomy and splenectomy were done. It was revealed from Ext.A9 that “preliminary ICD test done under local anesthesia. Peritoneal cavity contained about 2.5 litres of blood. Spleen shattered into pieces. All other organs normal, liver normal, pancreas normal, right and left kidney normal. Splenectomy done and haemostrus attended. Two unites of blood transfused during surgery. After surgery there was slight increase in the condition of the petitioner and he recovered gradually”. 7. The Tribunal awarded a total compensation of Rs.59,750/-. The break up of the compensation awarded is as under:- Loss of earning @ Rs.1500/- for three months - Rs.4,500/- Extra nourishment - 1,500/- Expenses for bystander/attendant during hospitalisation - 3,500/- Damage to clothing - 250/- Medical expenses - 11,500/- Compensation for pain and suffering - 20,000/- transportation to hospital - 1,000/- Compensation for permanent disability - 17,500/- Loss of earning power - 7,500/- -------------------- Total - Rs.67,250 =========== M.A.C.A. 959 of 2004 4 The total compensation assessed by the Tribunal comes to Rs.67,250/-. But the Tribunal awarded only Rs.59750/-. Therefore,the compensation awarded by the Tribunal is corrected as Rs.67,250/-. 8. Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs.1500/- and adopted a multiplier of 8 as the claimant was aged 55 and accepted the percentage of disability as 12% as noted in Exts.A6 and A7 certificates of disability and awarded Rs.17,500/- for the disability caused. The claimant as PW.1 testified before the Tribunal that he was employed as a Blocks Maker and used to earn Rs.3000/- to Rs.4000/- per month. There was no contra evidence on the side of the contesting 4th respondent. Therefore we feel that his monthly income can be reasonably estimated at Rs.2500/-. The multiplier adopted as 8 and the percentage of disability at 12% accepted by the Tribunal is not seriously challenged. Thus calculated, for the disability caused the claimant is entitled to Rs.28,800/- (12% of 2500 x 12 x 8). Thus on this count the claimant is entitled to an additional compensation of Rs.11,300/-. 9. For the loss of amenities/enjoyment of life, the Tribunal did not award any compensation. Taking into consideration the nature of M.A.C.A. 959 of 2004 5 the injuries sustained, we feel that a compensation of Rs.15,000/- would be reasonable for the loss of amenities and enjoyment of life. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 10. Thus, the appellant/claimant is entitled to an additional compensation of Rs. 26,300/- and Rs.7500/- omitted to be granted by the Tribunal. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 4th 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. 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 mt/-