IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 MACA.No. 2026 of 2005(B) ------------------------ OPMV.510/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- GEORGE @ GEORGEKUTTY, S/O.JOSEPH, MANNASSERY HOUSE, EAST OF KANAKARI, HIGH SCHOOL, KANAKKARI KARA, DO VILLAGE, MEENACHIL TALUK. BY ADV. SRI.K.A.HASHIM RESPONDENTS/ RESPONDENTS. -------------------------- 1. JOSEPH, S/O.VARGHESE, ALAKKAL HOUSE, PATTITHANAM BAHGOM KARA, ATHIRAMPUZHA, KOTTAYAM. 2. NAJEEB HASSAN, RAZIA MANZIL, PADINJATTUBHAGAM KARA, ATHIRAMPUZHA, KOTTAYAM. 3. THE NEW INDIA ASSUSRANCE COMPANY LTD., ETTUMANOOR. ADV. SRI.K.E.HAMZA FOR R2 SRI.M.SAJJAD SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2026 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of December, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.510/2001 on the file of Motor Accidents Claims Tribunal, Kottayam. He challenges the judgment and award of the Tribunal dated June 27, 2005 awarding a compensation of Rs.2,04,840/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened while the claimant was riding his motor cycle bearing Reg.No.KL-5J/3983 along Gandhinagar road at Kottayam and when he reached at north of Pathadippalam at Gandhinagar, he was knocked down by an ambassador car bearing Reg.No.KL-5B/3738 . The accident happened on November 26, 2000 at about 4 p.m. The claimant sustained serious injuries. Alleging negligence against the first respondent, the driver of the car, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs.7,50,000/-. MACA.No.2026/2005 2 3. Respondents 1 and 2, the driver and the owner of the offending car remained absent before the Tribunal. The third respondent, the insurer of the offending car filed a written statement admitting the policy. 4. Pws 1 to 4 were examined and Exts.A1 to A20 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the contesting third respondent. The Tribunal on an appreciation of evidence found that there was 20% contributory negligence on the part of the claimant and assessed a compensation of Rs. 2,56,050/-, but awarded only Rs. 2,04,840/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was 20% contributory negligence on the part of the claimant can be sustained ? 2. Whether the claimant is entitled to any MACA.No.2026/2005 3 enhanced compensation ? Point No.1 7. The first question for consideration is whether the finding of the Tribunal that there was 20% contributory negligence on the part of the claimant can be sustained. For several reasons, we find that the said finding cannot be sustained. According to the claimant, the car overtook his motor cycle and stopped abruptly as a result of which the motor cycle hit on the back side of the car. The police has charged the case against the first respondent, the driver of the car. PW4, the witness to the incident has testified regarding the negligence of the car driver. As against this, there was no evidence adduced by the contesting third respondent to show that there was any negligence on the part of the claimant. Therefore, the finding of the Tribunal that there was 20% contributory negligence on the part of the claimant cannot be sustained. Therefore, we hold that the accident happened due to the sole negligence of the first respondent, the driver of the car. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs. 2,56,050/-. MACA.No.2026/2005 4 8. The next point to be considered is whether the claimant is entitled to any enhanced compensation. The claimant sustained the following injuries in the accident : Central cord syndrome, quadriplegia, fracture nasal bone and avulsion fracture C6 , Cervical spine injury and nasal bone fracture. 9. The Tribunal awarded a total compensation of Rs.2,56,050/-. The break-up of the compensation awarded by the Tribunal is as under : Pain and suffering - Rs. 20,000/- Loss of earnings -Rs. 12,000/- Damage to clothes - Rs. 300/- Transportation - Rs. 800/- Medical expenses - Rs.1,17,950/- Disability - Rs. 90,000/- Loss of amenities - Rs. 15,000/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused, for loss of amenities and enjoyment in life and for pain and suffering endured by the claimant. 11. The Tribunal took the monthly income of the claimant as Rs.3,000/-, took his percentage of disability as 50% and adopted a multiplier of 5 as he was aged 63 at the time of the accident and MACA.No.2026/2005 5 awarded Rs. 90,000/- for the disability caused. The claimant was running a factory by name 'Amala Rubber Complex” as seen from Ext.A13 to A15. Ext.A12 series, the income-tax returns for the year 2000-2001 and 2001-2002 shows that he had an yearly income of more than Rs.60,000/-. Taking into consideration all these aspects, we feel that his monthly income can be reasonably fixed at Rs.4,000/-. Ext.A11 is the certificate issued by PW3, the Orthopaedic Surgeon of Medical College Hospital, Kottayam. Ext.A19 is the certificate issued by PW2, the doctor attached to Indo American Hospital, Chemmanakari, Vaikom showing that the claimant has a permanent disability of 70%. The claimant is now suffering from quadriplegia and his movements are restricted. He has weakness of upper limbs, partial weakness of both lower extremities and loss of sensation in both lower extremity and upper extremity. Therefore, we feel that the percentage of disability assessed as 70% in Ext.A9 can be accepted. The multiplier adopted by the Tribunal as 5 appears to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.1,68,000/- (70% x 4000 x 12 x 5). Thus the MACA.No.2026/2005 6 claimant is entitled to an additional compensation of Rs.78,000/-. 12. The Tribunal awarded Rs. 15,000/- for loss of amenities and enjoyment in life and Rs. 20,000/- for pain and suffering endured by him. Taking into consideration the nature of the injuries sustained by him, we feel that a compensation of Rs. 25,000/- for loss of amenities and enjoyment in life and Rs. 30,000/- for pain and suffering endured by the claimant would be reasonable. 13. The Tribunal awarded Rs.12,000/- towards loss of earnings for four months @ Rs.3,000/- per month. As we have fixed the monthly income of the claimant as Rs. 4,000/-, he is entitled to a compensation of Rs.16,000/- 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. 14. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 2,56,050/-. He is found entitled to an additional compensation of Rs.1,02,000/- with interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced MACA.No.2026/2005 7 compensation. He is also entitled to 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.2026/2005 8