IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 MACA.No. 978 of 2007() ---------------------- OPMV.2656/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- ASHRAF @ ABU, THADATHIL PARAMBIL HOUSE, M.L.ROAD, KODIMATHA KARA, KOTTAYAM. BY ADV. SRI.K.A.HASHIM SRI.M.I.ISMAIL RESPONDENT(S): RESPONDENTS -------------------------- 1. JABBAR, THUDIPARAMBIL HOUSE, NEAR KURISHUPALLY, PUTHANANGADI, KOTTAYAM. 2. K.GOPINATHAN, POOVATHUMALIYIL HOUSE, S.H.MOUNT P.O., KOTTAYAM. 3. THE NATIONAL INSURANCE CO. LTD., KOTTAYAM. ADV. SRI.LAL GEORGE FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.978 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.978/2007 on the file of Motor Accidents Claims Tribunal, Kottayam. In this appeal, he challenges the judgment and award of the Tribunal dated January 24, 2007 awarding a compensation of Rs.67,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on May 16, 1999 at about 2.45 p.m. : Fracture scapula left, fracture clavicle left, fracture 5th ,6th and 8th ( L) ribs, fracture 5th meta carpal left, head injury, depressed fracture frontal sinus subarachnoid haemorrhage. 2. The accident happened while the claimant was riding his employer's motor cycle bearing Reg.No.KL 8/M-2188 along Kottayam- Puthenangady road and when he reached near Children's Library, the motor cycle dashed against an autorickshaw bearing Reg.No.KRO MACA.No.978/2007 2 6983 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 3,75,000/-. 3. Respondents 1 and 2, the driver and the owner of the offending vehicle remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement admitting the policy. 4. Exts.A1 to A11 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 driving of the offending autorickshaw by first respondent and awarded a compensation of Rs.67,000/- with interest @ 7% per annum from the date of petition till realisation and a cost of Rs.3,500/-. 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 MACA.No.978/2007 3 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 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.67,000/-. The break up of the compensation amount awarded is as under: Damage to clothing - Rs. 1,000/- Extra nourishment - Rs. 1,000/- Bystander exp. - Rs. 500/- Medical expenses - Rs. 5,000/- Loss of earning - Rs. 4,000/- Pain and suffering - Rs.25,000/- Loss of amenities - Rs. 5,000/- Disability - Rs.25,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 9. The Tribunal awarded Rs.25,000/- for the disability caused to the claimant. The claimant suffered the following disabilities as seen MACA.No.978/2007 4 from Ext.A10 certificate of disability : 1. There is malunion of fracture clavicle and fracture scapula resulting in limitation of shoulder ( left) movements, 60 limitation of abduction, 10 limitation of internal rotation and external rotations present due to post traumatic stiffness. 2. There is wasting and weakness of left shoulder and left forearm with difficulty in doing his routine activities like lifting weight etc. 3. There is malunion of galeazzi fracture ( fracture radius) with persistent subluxation of inferior radio-ulnar joint ( left) resulting in 20 limitation of proration and 18 limitation of supination with 1 cm. shortening of left radius. 4. There is disability at the distal radio ulnar joint ( left) with weakness of grip strength of ( left) hand. 5. He had recurrent attacks of headache and left sided chest pain. 10. His percentage of disability was assessed at 20%. Taking MACA.No.978/2007 5 into consideration the nature of the disability caused to the claimant and that he was a coolie aged 29 earning Rs.3,750/- per month, we feel that an additional compensation of Rs.30,000/- would be reasonable for the disability caused to the claimant. 11. The Tribunal awarded Rs.5,000/- for loss of amenities and enjoyment in life. 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. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. There is another aspect in this case. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 13. In the result, the claimant is found entitled to an additional compensation of Rs. 40,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation MACA.No.978/2007 6 already awarded and also for the enhanced compensation 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.978/2007 7