IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 MACA.No. 625 of 2005() ---------------------- OPMV.1701/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- ROY MATHEW, KAIPURAM HOUSE, NEAR STATE BANK, KUMARAKOM. BY ADV. SMT.BETTY K.ALUKKA RESPONDENT(S): RESPONDENTS --------------- 1. JACOB PHILIP, ALUMMOOTTIL HOUSE, MUTTAMBALAM P.O., KOTTAYAM. 2. SHIBU, S/O.DAS, KAIPURAM, NEAR STATE BANK, KUMARAKOM. 3. NEW INDIA ASSURANCE CO.LTD., KOTTAYAM DIVISION,, REPRESENTED BY ITS DIVISIONAL MANAGER. ADV. SMT.T.C.SOWMIAVATHY FOR R3 SRI.M.V.THAMBAN FOR R1 SRI.R.REJI FOR R1 SMT.THARA THAMBAN FOR R1 SMT.REVATHY P.NAIR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.625 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1701/1997 on the file of Motor Accidents Claims Tribunal, Kottayam. He sustained the following injuries in a motor accident that occurred on September 10, 1996 at about 12.50 p.m.: Fracture dislocation of right hip. Multiple abrasion and contusions. 2. The accident happened while the claimant was pillion riding on the scooter bearing Reg.No.KRO/8801 ridden by the second respondent . When it reached at Thazhathangady, it fell into a gutter and the claimant fell on the road and sustained the injuries. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,00,000/-. 3. Respondents 1 and 2, the owner and the rider of the offending scooter remained absent before the Tribunal. The third MACA.No.625/2005 2 respondent, the insurer of the offending scooter filed a written statement admitting the policy. 4. Exts.A1 to A13 series were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent riding of the offending scooter by second respondent and awarded a compensation of Rs. 49,100/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. 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 the 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 second 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. MACA.No.625/2005 3 7. The break up of the compensation awarded is as under : Loss of earnings - Rs. 6,000/- Treatment exp. - Rs. 6,300/- Bystander exp. - Rs. 1,000/- Transportation - Rs. 500/- Pain and suffering -Rs. 15,000/- Disability - Rs. 15,300/- Loss of amenities - Rs. 5,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/- and took the percentage of disability as 5% and adopted a multiplier of 17 and awarded Rs. 15,300/- for the disability caused. Claimant claims to be a business man earning Rs. 3,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. In Ext.A12, the certificate of disability, it is certified that claimant has a permanent disability of 41%. The claimant has lost the head and neck of femur right side with resultant shortening instability. Taking into consideration the above disability caused to the claimant, we feel that MACA.No.625/2005 4 percentage of disability suffered by the claimant can be reasonably fixed at 20%. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 1,02,000/- ( 20% x 2500 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.86,700/-. 10. The Tribunal awarded Rs. 15,000/- for pain and suffering endured which appears to be very low. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 25,000/- would be reasonable on this count. 11. The Tribunal awarded Rs.5,000/- for loss of amenities and enjoyment in life which is quite inadequate. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensated of Rs. 15,000/- would be reasonable on this count. 12. There is another aspect in this case. The Tribunal awarded Rs. 6,000/- towards loss of income for 4 months @ Rs. 1,500/- per month. As we have fixed the monthly income of the deceased as Rs. 2,500/-, he is entitled to a compensation of Rs. 10,000/- towards MACA.No.625/2005 5 loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 4,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the claimant is entitled to an additional compensation of Rs. 1,10,700/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third 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 sv. MACA.No.625/2005 6 MACA.No.625/2005 7