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 15TH MARCH 2011 / 24TH PHALGUNA 1932 MACA.No. 1615 of 2004(B) ------------------------------------- [O.P(M.V).NO.1489/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA] .................... APPELLANT/PETITIONER: ------------------------------------- KUMARAN, S/O.MANIKKYAM, ANCHERY HOUSE, MANNAMPETTA COLONY, P.O.VATTANATHRA, VIA.ALAGAPPA NAGAR, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN. RESPONDENTS/RESPONDENTS: ----------------------------------------------- * 1. E.K.JOHNY, S/O.KOCHAPPAN, ERNAKULATHKARAN HOUSE, VATTANATHRA P.O. AMBALLOOR, THRISSUR DISTRICT. *(DELETED). *R.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 15/10/2009 IN I.A. NO.2871/2009. 2. K.R.UNNIMON, S/O.RAMAKRISHNAN, KOPADAN HOUSE, ALAGAPPA NAGAR, THRISSUR DISTRICT. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, NORTH PARAVOOR. R3 BY ADV. SRI.S.MAMMU. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1615 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 15th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1489 of 1998 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated August 19, 2004 awarding a compensation of Rs.44,758/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on September 12, 1998 at 5.10 p.m. at Manali. While the claimant was walking along Thrissur – Manali public road, he was knocked down by a lorry bearing registration No.KL-7/H 6865. He sustained the following injuries:- “1) Crush injury to right elbow. 2) Intra articular fracture. 3) Compound comminuted fracture.” Alleging negligence against the second respondent, the MACA 1615/2004 2 driver of the offending lorry, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.1,65,000/-. 3. Respondents 1 and 2, the owner and driver respectively of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle, filed a written statement admitting the policy but attributed negligence to the claimant. PWs.1 and 2 were examined and Exts.A1 to A11 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of second respondent and awarded a compensation of Rs. 44,758/- with interest @ 6% p.a. from the date of petition till realization and proportionate cost. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. MACA 1615/2004 3 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The claimant suffered the following disabilities:- “1) Ugly adherent scar over an area measuring 8 x 5 cm. over the lateral aspect of the right elbow. 2) 10° flexion deformity of the right middle and right ring finger at the level of the distal interphalangeal joint . 3) Flexion deformity of the right elbow 15° . 4) Free flexion of the right elbow 15° -100° (Rt.). 5) Superior radio ulnar joint is subluxated forearm right supination : 20° pronation : 80°. 6) In Ext.A1 certificate of disability the doctor certified that the claimant has 15% disability.” 7. The Tribunal awarded a total compensation of MACA 1615/2004 4 Rs.44,758/-. Break up of the compensation awarded is as under:- Loss of earnings : Rs. 4,500 Extra nourishment and : Rs. 1,500 wages to attendants. Medical expenses : Rs. 858 Transport to hospital : Rs. 300 Pain and suffering : Rs. 10,000 Loss of amenities and : Rs. 6,000 enjoyment in life. Permanent disability : Rs. 21,600 ------------------ Total : Rs.44,758 ======= 8. The counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 15% as certified by the doctor in Ext.A1 certificate, adopted multiplier of 8 and awarded a compensation of Rs.21,600/- for disability caused. The claimant was employed in Tile Factory earning Rs.3,000/- per month, according to him. Taking into consideration the above aspect, we feel that his MACA 1615/2004 5 monthly income can reasonably be fixed at Rs.2,500/-. The claimant was aged only 35 at the time of the accident. Therefore, proper multiplier that can be adopted in this case is 16. The percentage of disability assessed by the Tribunal as 15% is found to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.72,000/- (Rs.2,500/- x 12 x 16 x 15%) for the disability caused. Thus the claimant is entitled to an additional compensation of Rs.50,400/- on this count. 10. The Tribunal awarded a sum of Rs.4,500/- towards loss of earning for six months at the rate of Rs.1,500/- per month. As we have fixed monthly income of the claimant as Rs.2,500/-, he is entitled to a compensation of Rs.7,500/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result, the claimant is found entitled to an additional compensation of Rs.53,400/-. The Tribunal awarded interest only @ 6% per annum, which appears to MACA 1615/2004 6 be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded and also for the enhanced compensation. The third respondent being the insurer of the offending vehicle shall 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 to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn