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. 699 of 2003() ---------------------- (O.P.(MV)NO.2054/1995 OF MACT, ERNAKULAM) APPELLANT/PETITIONER IN O.P.(MV). ----------------------------------------------- K.V.SHYJI, AGED 24 YEARS, D/O.VIJAYAN, KALATHILPARAMBIL HOUSE, KADAEBHAGOM, PALLURUTHY, KOCHI - 6. BY ADV. SRI.R.SUDHISH RESPONDENT(S): RESPONDENTS NOS.1 TO 6 IN OP(MV) ------------------------------------------------ 1. B.RAMESH, S/O.BHASKARA PANICKER, CHANIYIL HOUSE, PULIPRA. KULASEKHARAMANGALAM, VAIKKOM, KOTTAYAM. 2. SANAL KUMAR, S/O.CHITHAMBARAN, NADUVATHARA VEETTIL, WARD NO.X, KANJIKUZHY PANCHAYATH, CHERTHALA, ALAPPUZHA DISTRICT. 3. THE ORIENTAL INSURANCE CO.LTD., M.G.ROAD, COCHIN 35. 4. JAGJITH SINGH, S/O.JAI SINGH, ASHIRWAD, GIRI NAGAR, KADVANTHRA, COCHIN - 2.(deleted) 5. PHILIP, S/O.UDHAPAL, THADATHIL HOUSE, WARD NO.VIII, CHEMPU VAIKOM, KOTTAYAM.(deleted) 6. THE NEW INDIA ASSURANCE CO.LTD., M.G.ROAD, COCHIN - 11. Respondents 4 and 5 deleted from the party array vide order dated 5-1-2010 ADV. SRI.RENIL ANTO KANDAMKULATHY FOR R6 ADV.SRI.JACOB MURIKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON 17/02/2010 PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A . No.699 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.2054/1995 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated 31st October 2001 granting a compensation of Rs. 46,250/- for the loss caused to the claimant on account of the injury caused in a motor accident. 2. The facts in brief are this : The appellant/claimant was travelling in a bus bearing Reg.No.KL7/B-7599 on December 12, 1994 at about 2.15p.m. along Alappuzha -Ernakulam road. When the bus reached at Eramalloor, a lorry bearing Reg.No. KL2/7478 driven by the second respondent and owned by the first respondent came at a high speed from the opposite side and dashed against the bus in which the claimant was travelling. The claimant sustained serious injuries on the right elbow . The MACA.No.699/2003 Page numbers accident occurred due to the rash and negligent driving of the offending lorry by the second respondent. The claimant has claimed a compensation of Rs. 3 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending lorry and respondents 4 and 5, the owner and driver of the bus involved in the accident remained absent and were set exparte. The third respondent, the insurer of the lorry, filed a written statement admitting the policy, but contending that the accident occurred due to the negligent driving of the bus by the fifth respondent. The 6th respondent, the insurer of the bus filed a written statement admitting the policy, but contending that the accident occurred as a result of the negligent driving of the lorry by the second respondent. 4. The claimant was examined as PW1 before the Tribunal and Exts.A1 to A9 were marked on her side. On the side of the third respondent, copy of the policy was marked as Ext.B1. 5. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by the second respondent and passed an award against respondents 1 to 3 granting a compensation of Rs. 46,250/- with MACA.No.699/2003 Page numbers interest @ Rs. 9% per annum from the date of petition till realisation and with proportionate costs. Dis-satisfied with the quantum of compensation awarded, the claimant has filed this appeal. 6. The only point which arises for consideration is whether the claimant is entitled to any enhanced compensation ? 7. The accident is not disputed. It is also not in dispute that the accident occurred due to the negligence of the drivers of both the vehicles , respondents 2 and 5. The Tribunal awarded compensation as follows : Transport of hospital - Rs. 600/- Damage to clothing - Rs. 500/- Attendant expenses - Rs. 3,200/- Extra nourishment - Rs. 1,600/- Treatment expenses - Rs.10,256/- Loss of earnings - Rs. 9,000/- Pains and sufferings - Rs.16,000/- Loss of marriage prospects - Rs. 5,000/- Rs.46,156/- Rounded off to - Rs. 46,200/- ======== MACA.No.699/2003 Page numbers 8. The claimant sustained the following injuries as revealed from Ext.A8, the copy of the wound certificate . Patient was conscious with stable vital sings. 4 x 3 x 1 inch laceration over posterior aspect of ( R) elbow with contamination and crushing of muscles. Deformity and abnormal mobility of lower 1/3 ( R) arm. No distal neurovascular deficit. X-ray : Loss of lateral condyle ( R) humerus with split of lower 1/3 of humerus with comminution olecranon process missing. 9. She was hospitalised for 32 days and required six months rest at home. Ext.X1, the certificate issued by the Medical Board shows that the claimant has the following disabilities : On examination there is shorting of ( R) upper limb by 5 CM deformity of ( R ) elbow and there is restriction of elbow flexion beyond 90 , there is 15 lack of full of ( R) upper limb inability to bear weight with her ( R) upper limb. She can write and take food only with difficulty due to posttraumatic arthritis of ( R) elbow and shoulder. Hence she is orthopeadically handicapped and her partial permanent disability is assessed to be 22% . MACA.No.699/2003 Page numbers 10. The disability of the claimant was assessed at 22% by the Medical Board which is not seriously disputed. Ext.A6 , the photographs of the claimant shows that the right hand of the claimant was disfigured especially on the right elbow region. It is stated in the disability certificate issued by the Medical Board that she can write and take food only with difficulty. Further Ext.A8 the discharge summary shows that even during 1995 she had visited the hospital for removing K wire. The Tribunal did not bother to take into consideration this aspect. No compensation was awarded by the Tribunal for the permanent disability caused. The Tribunal has assessed the monthly income of the claimant as Rs. 1500/- per mensum which appears to be reasonable as the claimant was working as a tailor. Ext.A7, the copy of the first page of the SSLC book shows that her date of birth is 22/03/1975. Therfore on the date of accident, she was aged 19. In the light of the principles laid down in Sarla Varma(Smt) v. Delhi Transport Corporation and another ( 2009(6)SCC 121), the proper multiplier of the said age group is 18. Therefore, towards permanent disability caused and loss of earning power, the claimant is entitled to a compensation of Rs. 71280/- ( 22% of 1500 x 12 x 18). In fixing the MACA.No.699/2003 Page numbers multiplier, we have taken into consideration the disfigurement caused to the right hand of the claimant and her loss of amenities and enjoyment of life. In all other aspects, we are not disturbing the compensation awarded by the Tribunal. Thus the appellant is entitled to an additional compensation of Rs. 71,280/- with interest @ 9% from the date of petition till realisation with proportionate costs. Respondents 3 and 6 shall deposit the said amount in equal proportion before the Tribunal within one month from this date. The counsel for respondents 3 and 6 submits that the compensation awarded by the Tribunal has already been deposited by them. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.699/2003 Page numbers