IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 MACA.No. 1680 of 2004(C) OPMV.1704/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANT/CLAIMANT: YOUSUF A., S/O. K.ALI SAHIB, KURUMATHIPPARA HOUSE, PAZHAMBALAKKODE P.O., ALATHUR TALUK, PALAKKAD DIST. BY ADV. MR.LIJU. M.P RESPONDENT(S): RESPONDENTS: 1. T.K.BASHEER, S/O. ABDUL KHADER, THARAKKAL HOUSE, PATTIPARAMBU, THIRUVILWAMALA, THRISSUR (DRIVER OF THE JEEP KA-19/M 7603). 2. V.A.MUHAMMED, S/O. AHAMMEDKUTTY, VADUVANKANDIYIL HOUSE, PUTHUPPADI (P.O), MYSOOR,KARNATAKA. (OWNER OF THE JEEP KA-19/M 7603) 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, V.R.S. PURAM, COIMBATORE-2 (INSURER OF THE JEEP KA-19/M 7603). ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1680 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of DECEMBER, 2009 J U D G M E N T Ramachandra Menon, J 1. A motor cycle bearing Registration No. KL-9D/2548, ridden by the appellant and a jeep bearing Registration No.KA-19/M 7603 driven by the first respondent, owned by the second respondent and insured by the third respondent, which was coming from the opposite side hit against each other on 9/10/1997 causing injuries to the rider of the motor cycle, leading to the claim. 2. The owner and driver of the offending jeep did not choose to contest the matter and were set exparte. The third respondent/insurer filed written statement, challenging the negligence and quantum. No statutory ground of defence as per Section 149(2) of Motor Vehicles Act was pointed out or established. The evidence consists of the oral testimony of M.A.C.A. No.1680 of 2004 2 PW1, who is a doctor and the documents produced as Ext.A1 to A8 from the part of the claimant. No evidence, oral or documentary, was adduced from the part of the respondents. After analysing the evidence on record, the Tribunal arrived at a finding that the accident was occurred due to the rash and negligent driving of the jeep and hence that the rider of the motor cycle was liable to be compensated by the respondents. 3. The medical records produced before the Tribunal reveal that the claimant sustained serious injuries, such as crush injury on the right foot, involving fracture and finally amputation of three fingers of the right foot and dislocation of left big toe; besides skin grafting. The case of the claimant was that there was permanent disability of 12% as evidenced by Ext.A7, which very much adversely affected the business pursued by the claimant. Absolutely, no evidence was adduced by the claimant to substantiate the monthly income claimed at Rs.4,000/-. In the said M.A.C.A. No.1680 of 2004 3 circumstance, the Tribunal chose to reckon the income only at a notional level of Rs.1,500/- per month. Taking note of the fact that the permanent disability as certified in Ext.A7 was on the higher side, the Tribunal chose to fix the same only @8%. Adopting a multiplier of '16', based on the age of claimant as 37 years, the compensation in respect of the disability/loss of earning capacity was fixed as Rs.23,040/- which was rounded to Rs.23,000/-. The Tribunal also awarded some amounts under other permissible heads; such as Rs.6,000/- towards loss of earning for four months; Rs.1,500/- towards transportation charges, Rs.1,000/- towards extra nourishment; Rs.3,500/- towards bystander's expenses; Rs.250/- towards damage to clothing; Rs.30,000/- towards medical expenses; Rs.15,000/- towards pain and suffering and another Rs.5,000/- towards loss of amenities and enjoyment in life; thus granting a total compensation of Rs.85,250/- which was directed to be satisfied by the third respondent/insurer with interest at M.A.C.A. No.1680 of 2004 4 the rate of 6% per annum. The appeal is for enhancement of the compensation. 4. Mr. Liju.M.P., learned counsel appearing for the appellant submits that, the compensation awarded by the Tribunal is much on the lower side and that there is no justification for limiting the monthly income to just a notional figure of Rs.1,500/-. It is also contended that the Tribunal ought to have reckoned the entire extent of 12% as the certified disability, in view of the documentary evidence produced; besides examining PW1 doctor, who certified that Dr. Jacob who issued Ext.A7 Disability Certificate was working as his junior. 5. Ms. Luxy, the learned counsel appearing for the third respondent/insurer, submits that there is no reason to modify the award, particularly when the claimant did not choose even to mount the box to say anything about his job/business or income. It is also stated that adequate amounts have been awarded under all the permissible M.A.C.A. No.1680 of 2004 5 heads. 6. True, the appellant did not mount the box, to vouch about the alleged business or as to the income. However, it has to be borne in mind that the appellant was admittedly above 37 years of age on the date of the accident. Even at the time of introduction of the 2nd schedule to the Motor Vehicles Act in the year 1994, the scheme of the amendment was to reckon a sum of Rs.15,000/- as the notional annual income, even in the case of persons who were not having any employment at all. In the instant case, the accident occurred in the year 1997 and the claimant was riding his own motor cycle, which suggests that a better income was possible. However, it will not be proper for this Court to enhance the monthly income on surmises and conjunctures. But the extent of the permanent disability fixed by the Tribunal at 8%, appears to be on the lower side in view of Ext.A7 Disability Certificate and the oral evidence of PW1 Doctor. We find it fit and proper to M.A.C.A. No.1680 of 2004 6 have it raised to 10%. On reworking the compensation for the permanent disability and the loss of earning power, it is found that the appellant is entitled to get a total sum of Rs.28,800/- under this head. After giving credit to the amount of Rs.23,000/- awarded by the Tribunal, the appellant is entitled to get a balance amount of Rs.5,800/-. We find that the disability has resulted in much adverse consequences in the daily life of the appellant. A sum of Rs.5,000/- has been awarded by the Tribunal as compensation for the loss of amenities and enjoyment in life. We award a further sum of Rs.7,500/- under this head as well. 7. In the result, the appellant is entitled for a further amount of Rs.13,300/- as the balance compensation for the injuries sustained by him. The said amount as well as the amount already awarded by the Tribunal, will carry interest at the rate of 7% per annum. The due amount shall be deposited by the third respondent/insurer as M.A.C.A. No.1680 of 2004 7 expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The appeal is allowed in part, no cost. P.R.RAMAN, JUDGE P.R. RAMACHANDRA MENON, JUDGE nl