IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 MACA.No. 1343 of 2005() ----------------------- OPMV.2756/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- MR. P.R.SOMAN, AGED 38 YEARS, S/O. RAGHAVAN, PALAKKATTU VEEDU, KIZHAKKENADA, VAIKOM P.O. BY ADV. SRI.K.JANARDHANAN SRI.MANURAJ. K.J RESPONDENT(S): --------------- 1. P.M. RAPHAEL, PAPPALI HOUSE, ASOKAPURAM, ALUVA. 2. ANILKUMAR K.P., KANICHAPPILLY VEETTIL, KANJOOR P.O., ALUVA (VIA). 3. THE UNITED INDIA INSURANCE CO. LTD., ALUVA. ADV. SRI.K.SANDESH RAJA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1343 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.2756/1997 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated March 22, 2005 awarding a compensation of Rs. 30,700/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these : On April 29, 1997 at about 2.45 p.m., claimant was travelling in the bus bearing Reg.No.KL1-8944 from Avanamkode to Ernakulam. When the bus reached near Mangalapuzha bridge near Aluva, it hit on the right side of the body of another bus bearing Reg.No. KL-7/G-9439 causing serious injuries to the right arm of the claimant. According to the claimant, the accident due to the negligence of the driver of the bus in which he was travelling. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the MACA.No.1343/2005 2 offending bus bearing Reg.No.KL I 8944 are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and driver of the offending bus remained absent before the Tribunal. The third respondent the insurer of the offending bus filed a written statement admitting the policy and further contended that there was also negligence on the part of the claimant. 4. Claimant was examined as PW1 and Exts.A1 to A9 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, assessed a total compensation of Rs. 61,400/-, but awarded only Rs.30,700/- finding that the drivers of both the buses were negligent and that the claimant did not make the driver,owner and insurer of the other bus involved in the accident as parties in the petition. The claimant in this appeal has challenged the finding of the Tribunal reducing the compensation to 50% as claimant did not make the driver, owner and insurer of the other bus in the application. He has also claimed enhancement of compensation. 5. The following points arise for consideration : MACA.No.1343/2005 3 1. Whether the finding of the Tribunal reducing the compensation to 50% on the ground that the claimant did not make the owner, driver and insurer of the other bus involved in the accident as parties in the application can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? Point No.1 6. The Tribunal found that the accident occurred due to the negligence of the drivers of both the buses involved in the accident, that as the claimant did not make the owner, driver and insurer of the other bus as parties in the application assessed a compensation of Rs.61,400/- and reduced it to Rs. 50% and awarded only Rs. 30,700/-. 7. For several reasons we are unable to sustain the said finding of the Tribunal. In the case of composite negligence, the liability of the parties are joint and several. The injured can claim the entire compensation from one of the tort feasors. Therefore the 3rd respondent Insurance Company is bound to pay the entire compensation assessed by the Tribunal ( Rs. 61,400/-). 8. The Tribunal awarded a total compensation of Rs.61,400/-. The break up of the compensation awarded is as under : Transport to hospital - Rs. 500/- MACA.No.1343/2005 4 Damage to clothing - Rs. 500/- Extra nourishment - Rs. 500/- Attendant expenses - Rs. 500/- Treatment expenses - Rs. 2,000/- Loss of earning - Rs. 6,000/- Pain and suffering - Rs. 18,000/- Loss of amenities - Rs. 10,000/- Disability - Rs. 23,400/- 9. Counsel for the claimant sought enhancement of compensation for the disability caused. 10. The Tribunal took the monthly income of the claimant as Rs.1,500/- and took the percentage of disability as 10% and adopted a multiplier of 13 and awarded Rs. 23,400/- for the disability caused. According to the claimant, he was working as a Supplier in a hotel and used to earn Rs. 2,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 1,750/-. Taking into consideration the nature of the disabilities caused to the claimant as revealed from Ext.A8, we feel that his percentage of disability can be fixed at 20%. The Tribunal adopted a multiplier of 13. As the claimant was aged 38 at the time of the accident, the proper multiplier that can be adopted in this case is 16. Thus calculated for the disability caused, the claimant is entitled to a MACA.No.1343/2005 5 compensation of Rs. 67,200/- ( 20% x 1750 x 12 x 16). Thus on this count, the claimant is entitled to an additional compensation of Rs.43,800/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 61,400/-. He is also entitled to an additional compensation of Rs. 43,800/-. He is entitled to interest @ 9% per annum from the date of petition till realisation 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.1343/2005 6 MACA.No.1343/2005 7