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 16TH FEBRUARY 2011 / 27TH MAGHA 1932 MACA.No. 1945 of 2005() ----------------------------------- OP(MV).577/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANT/PETITIONER. -------------------------------------------------------------- ABDUL HAKEEM,S/O.THALANGARA ABDULLAKUNHI, THALANARA HOUSE, THALANGARA, KASARAGOD. BY ADV. SRI.M.SASINDRAN SRI.SREEJITH S.NAIR RESPONDENT(S): RESPONDENT. ------------------------------------------------- 1. CHERAYIL VASU, AGED 35 YEARS, S/O.NEELAKANDAN, CHALIYIL HOUSE, ANTHIYOORKUNNU AMSOM, MUTTAYOOR DESOM, MALAPPURAM. 2. P.T.MOHAMMED, S/O.LATE HASSAN ANTHIYOORKUNNU, KOTTAPPURAM, PULIKKAL, MALAPPURAM DISTRICT. 3. THE ENW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, 2ND FLOOR, V.K.BUILDINGS, CHEROOTTY ROAD, KOZHIKODE 673 001. R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 1945 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 14th February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.577 of 1997 on the file of the Motor Accidents Claims Tribunal, Kasaragod. In this appeal he challenges the judgment and award of the Tribunal dated May 7, 2004 awarding a compensation of Rs.1,99,800/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on January 7, 1997 at about 3 p.m. at Maliankara near Kottappuram. While the claimant and his wife were travelling in a car bearing registration No. KL- 11/6666, a bus bearing registration No.KL-10/7542 driven by the 1st respondent came at a high speed from the opposite direction and dashed against the car of the claimant. The claimant sustained very serious injuries. His wife and the daughter sustained serious injuries and succumbed to the injuries sustained while undergoing treatment in the Medical College MACA 1945/2005 2 Hospital, Kozhikode. Alleging negligence against the 1st respondent driver of the offending bus, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.15 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending bus, filed a joint written statement admitting the accident but denied the negligence on the part of the driver of the bus and attributed negligence to the driver of the car involved in the accident. The 3rd respondent, insurer of the offending bus, filed a written statement admitting the insurance policy but attributed negligence to the driver of the car. 4. This O.P. was jointly tried along with other O.P. filed by legal heirs of deceased persons and other injured persons. PWs.1 and 2 were examined and Exts.A1 to A44 were marked on the side of the claimant. RW1 was examined and Ext.B1 was marked on the side of the respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence of the 1st respondent driver of the offending bus and awarded a compensation of Rs.1,99,800/- with interest at 9% p.a. from the MACA 1945/2005 3 date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard learned counsel for the claimant and learned counsel for the Insurance Company. 6. The finding of the Tribunal that the accident occurred due to the negligence of the 1st respondent driver of the offending bus 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.1,99,800/-. Break up of the compensation amount awarded is as under:- Transportation to hospital : Rs. 10,000 damage to clothing, extra nourishment, bystander's expenses. Medical expenses : Rs. 43,000 Pain and suffering : Rs. 12,000 Loss of amenities : Rs. 10,000 and enjoyment in life. Permanent partial disability : Rs. 1,24,800 ------------------ Total : Rs.1,99,800 ======= MACA 1945/2005 4 8. Learned counsel for the claimant sought enhancement of the compensation for the disability caused, pain and suffering endured, loss of amenities and enjoyment in life and on other heads. 9. The claimant sustained open fracture of right fibula and bleeding from the mouth. X-ray showed subcondyle fracture with lateral condylar extension and fracture fibula right. 10. The Tribunal took the monthly income of the claimant as Rs.8,000/-, took the percentage of disability as 10%, adopted multiplier of 13 and awarded a compensation of Rs.1,24,800/- for the disability caused. The claimant claims to be a businessman engaged in building and manufacturing ‘uru’ (shipping vessel) earning monthly income of Rs.1,00,000/-. Ext.A24 shows the same. Ext.A26 series and statement of accounts of Sulykha Shipyard Ltd. prepared by Chartered Accountant for the year 1993 to 1996 showed his income. He is the proprietor of Small Scale Industrial Unit engaged in production of hardware vessel registered under the Department of Industries and commerce. Taking into consideration all these aspects, we feel that monthly MACA 1945/2005 5 income of the claimant can reasonably be fixed at Rs.20,000/-. Multiplier adopted by the Tribunal as 13 appears to be reasonable. The Tribunal assessed a percentage of disability as 10%. PW2 Orthopaedic surgeon in Ext.A23 certificate has certified that the claimant has 25% disability. The claimant has now 5 degree extension lag, flexion only up to 90 degree and which too painful and shortening of right lower limb. Taking into account the nature of the disability caused to the claimant, we feel that percentage of disability can be taken as 15%. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.4,68,000/- (Rs.20,000/- x 12 x 13 x 15%). Thus the claimant is entitled to an additional compensation of Rs.3,43,200/- for the disability caused. 11. The Tribunal awarded Rs.12,000/- for pain and suffering endured and Rs.10,000/- for loss of amenities and enjoyment in life. Taking in to consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.30,000/- for pain and suffering endured and Rs.25,000/- for loss of amenities and enjoyment in life would be reasonable. MACA 1945/2005 6 12. The Tribunal awarded Rs.10,000/- for transportation to hospital, damage to clothing, extra nourishment and bystander’s expense. Taking into consideration the fact that the claimant was in the hospital for 43 days, we feel that a compensation of Rs.20,000/- would be reasonable on these counts. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs.3,86,200/- with interest @ 7.5% from the date of petition till realization. The third respondent/Insurance Company is directed to deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant The award of the Tribunal is modified as above. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.