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 17TH FEBRUARY 2010 / 28TH MAGHA 1931 MACA.No. 1274 of 2004() ----------------------- OPMV.33/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/PETITIONER ---------------------------------- CHELLAYYAN, S/O. MARKOSE, PLANKALAKONAM, THADATHARIKATHU PUTHEN VEEDU, KATTAKADA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.A.S.SABU SRI.A.V.VIMLKUMAR SRI.A.G.GIRISH KUMAR RESPONDENT(S): RESPONDENTS: --------------------------- 1. IBRAHIMKUNJU, KADUVAKUZHI, THADATHARIKATHU VEEDU, PALLIVETTAH, ARYANADU P.O., NEDUMANGADU. 2. M. BADHUSHA, KUKKUMANI THADATHARIKATHU VEEDU, KATTACKODE, PERUMKULAM, KATTAKKADA P.O., THIRUVANANTHAPURAM. 3. M/S. UNITED INDIA INSURANCE CO.LIMITED DIVISIONAL OFFICE, C.W.C. BUILDING, I.M.S. COMPOUND, PALAYAM, THIRUVANANTHAPURAM. 4. R.V. RAJESH, AISWARYA, KANJIYOORKONAM, KULANGARA, KULATHUMMAL, THIRUVANANTHAPURAM. 5. M/S. NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, NO.11, GANDHARIAMMAN KOVIL ROAD, THAMPANOOR, THIRUVANANTHAPURAM. 6. R. SURESH KUMAR, ROADARIKATHU KIZHAKKUVILAKOM PUTHEN VEEDU, KATTAKKADA P.O, THIRUVANANTHAPURAM. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R3 SRI.KKM.SHERIF FOR R5 SRI.A.A.ZIYAD RAHMAN FOR R5 SRI.C.SATHYARAJ FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.1274 of 2004 ------------------------------------------------------ Dated: FEBRUARY 17, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 33/1997 of the Motor Accidents Claims Tribunal, Neyyattinkara, challenges the judgment and award of the Tribunal dated May 9, 2002 awarding a compensation of Rs.53,460/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts in brief are these: On October 21, 1996, the claimant was travelling in a car bearing registration No.KL-01-H-9393 . When he reached near Etturuthi-Kalunku Junction on the Kattakkada - Thiruvananthapuram Public Road, a mini lorry bearing registration No.KL-01-B-3965 driven by the 2nd respondent came at a high speed and collided head on with the car in which the claimant was travelling. The claimant sustained serious injuries. According to the claimant the accident occurred due to the rash and negligent driving of the offending lorry by the 2nd respondent. Respondent No.1 as the owner, respondent No.2 as the driver and respondent No.3 as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. 3. The owner, insurer and driver of the car in which the M.A.C.A.1274 of 2004 2 claimant was travelling were subsequently impleaded as respondents 4 to 6 in the OP. Respondents 1 and 2, the owner and the driver of the offending lorry, remained absent. The 3rd respondent, insurer of the offending lorry, filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the 2nd respondent. 4. The owner of the car filed OP(MV) 1/1997 claiming compensation which was also tried jointly along with the present OP by the Tribunal. PWs.1 and 2 were examined and Exts.A1 to A15 were marked on the side of the claimant. The Tribunal on an appreciation of evidence awarded a compensation of Rs.53,460/- with interest at the rate of 9% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. 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 also not challenged in this appeal. Therefore, the only question to be considered is whether the claimant is entitled to any enhanced compensation . 6. Heard the learned counsel for the appellant and Insurance Company. 7. The appellant/claimant sustained the following injuries:- “Lacerated wound ( R ) side of face 8 x 2 x 1 cm. over the M.A.C.A.1274 of 2004 3 cheek cutting the muscle and pad, lacerated wound contained multiple glass pieces. Lacerated wound lateral to the above wound 6 x 1 x 5 x 1 cm. obliquely over the tragus of the ear cutting superficial temporal artery, lacerated wound ( R ) eyebrow 6 x 1 x 0.5 cm.. Lacerated wound ( R) temple 7 x 0.5 x 0.5 cm.. Lacerated wound in front of the above wound irregular in size about 6 x 0.5 x 0.5 cm. over (R ) temporal region, multiple lacerated wound 2 in Nos. 3 x 0.5 x 0.5 cm. (R ) forehead. C.T. Scan confirmed hyperdense area medial to the (R ) zygomatic arch extra cranial soft tissue swelling in the (R ) temporal region.” 8. Ext.A8 is the wound certificate, Ext.A9 is the Referal OP Card, Ext.A10 series are the OP tickets, Ext.A12 is the discharge slip and Ext.A14 is the OP Ticket. He was treated in the Medical College Hospital, Trivandrum and in the Government Hospital, Kattakkada. Ext.A15 disability certificate issued by the doctor shows that he has suffered a permanent disability of 10%. 9. The Tribunal awarded compensation as follows : Pain and suffering -Rs. 12,500/- Loss of earnings -Rs. 2,700/- Transport expenses -Rs. 1,000/- Damage to clothing -Rs. 500/- Medical expenses -Rs. 3,000/- Disability -Rs. 23,760/- Loss of amenities -Rs.10,000/- ------------- Rs.53,460/- ======== M.A.C.A.1274 of 2004 4 10. Counsel for the appellant mainly disputed the quantum of compensation awarded for the disability caused, loss of earnings and loss of amenities and enjoyment of life. 11. The Tribunal took his monthly income as Rs.1800/- and applying the multiplier of 11, awarded Rs.23,760/- for the disability caused. The claimant was a coolie aged 42. Taking into consideration the fact that as a coolie he would have earned Rs.100/- per day, we feel that his monthly income can be reasonably fixed as Rs.2000/-. The multiplier adopted by the Tribunal and the percentage of disability assessed are not seriously disputed. Thus calculated for the disability caused he is entitled to a compensation of Rs.26,400/-. Thus on this count the claimant is entitled to an additional compensation of Rs.2640/- (Rs.26400 - 23760). 12. Towards loss of earnings for 1½ months at the rate of Rs.1800/- per month, the Tribunal awarded Rs.2700/-. We have assessed the monthly income of the claimant as Rs.2000/-. Taking into account the nature of the injuries sustained, he must have been disabled for two months for which he is entitled to a compensation of Rs.4000/- at the rate of Rs.2000/- per month. Thus on this count he is entitled to an additional compensation of Rs.1300/-. 13. For the loss of amenities/enjoyment of life, the Tribunal awarded Rs.10,000/-. For the pain and suffering entered by the appellant also Rs.10,000/- was awarded by the Tribunal. Taking into M.A.C.A.1274 of 2004 5 consideration the fact that he has suffered injuries to the eye, for the loss of amenities/enjoyment of life and for the pain and suffering, we feel that a compensation of Rs.20,000/- under each count would be reasonable. Regarding other aspects, the compensation awarded by the Tribunal is not questioned. 14. Thus the appellant/claimant is entitled to an additional compensation of Rs.23,940/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation and proportionate costs. The 3rd respondent, insurer of the offending vehicle, shall deposit the amount within two months from the date of receipt of a copy of this judgment before the Tribunal with notice to the claimant. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-