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 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 MACA.No. 1406 of 2005() ----------------------- OPMV.542/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/APPLICANT --------------------------------- STANLY.M., S/O.MUTHAPPAN, PUNNACKATTU PUTHUVAL PUTHEN VEEDU, PERUMPAZHUTHOOR (P.O), NEYYATTINKARA, TRIVANDRUM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.A.S.SABU SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENT(S): RESPONDENTS --------------- 1. H.CHANDRADASAN, HOUSE NO. 11/37-A, NELLIVILAI VEEDU, THENKAM PALANCHI, ST.MANACADU (P.O), METHUKUMMAL (V.P), VILAVANCODE, KANYAKUMARI DISTRICT. 2. M/S.UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE NO.1, C.W.C BUILDING, L.M.S.COMPOUND, PALAYAM, TRIVANDRUM. 3. JOHN SELVAKUMAR, HOUSE NO.1-13-92 B, THETTI, MARUTHANCODE, KALIYICKAVILAI, VILAVANCODE (P.O), KANYAKUMARI DISTRICT. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1406 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of September, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.542/2002 on the file of Motor Accidents Claims Tribunal, Neyyattinkara. He sustained the following injuries in a motor accident that occurred on March 30, 2002 at 2.30 p.m. 1. Type III compound comminuted fracture distal femur ( R) 2. Incised wound ( R) dorsum, 2. The accident happened while the claimant was travelling as a pillion rider on a motor cycle bearing Reg.No.TN 74- Z- 9274 along Kzhuvanthitta-Marthadom public road and reached near CPIM party office at Kuzhithura, he was knocked down by an auto rickshaw bearing Reg.No.TN 74-Y-5169 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. 4,00,000/-. 3. First respondent, the owner cum driver of the offending MACA.No.406/2005 2 auto rickshaw filed written statement contending that the accident occurred due to the negligence of the claimant. Third respondent is the owner of the motor cycle. He remained absent before the Tribunal. The second respondent, the insurer of the offending auto rickshaw filed a written statement admitting the policy. 4. Pws 1 and 2 were examined and Exts.A1 to A13(a) were marked on the side of the claimant before the Tribunal. On the side of the contesting respondents, Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence of the first respondent and awarded a compensation of Rs. 88,210/- with interest @ 9% per annum from the date of petition till realisation against respondents 1 and 2. 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 first MACA.No.406/2005 3 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 break up of the compensation awarded is as under : Pain and suffering - Rs. 12,000/- Loss of earnings - Rs. 6,000/- Medical expenses - Rs.10,000/- Transportation - Rs. 1,000/- Damage to clothing - Rs. 250/- Disability - Rs.48,960/- Loss of amenities and enjoyment in life - Rs.10,000/- 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 took the monthly income of the claimant as Rs.2,000/-, took the percentage of disability as 12%, took a multiplier of 17 and awarded Rs.48,960/- for the disability caused. According to the claimant, he was aged 37 and is a fish vendor earning Rs. 5,000/- 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/-. MACA.No.406/2005 4 The percentage of disability as 12% and the multiplier as 17 taken by the Tribunal are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 61,200/- ( 12% x 2500 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.12,240/-. 10. The Tribunal awarded Rs. 10,000/- towards loss of amenities and enjoyment in life which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.15,000/- would be reasonable on this count. 11. The Tribunal awarded Rs.6,000/- towards loss of earnings for three months @ Rs. 2,000/- per month. As we have fixed the monthly income of the claimant as Rs.2,500/-, he will be entitled to a compensation of Rs. 7,500/- towards loss of earnings for three months. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the claimant is entitled to an additional compensation of Rs. 18,740/-. He is entitled to interest @ 9% per MACA.No.406/2005 5 annum from the date of petition till realisation and proportionate cost. The second 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.406/2005 6