IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 MACA.No. 1834 of 2006(A) ------------------------------------- [O.P(MV).NO.2170/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR] .................... APPELLANT/PETITIONER: ------------------------------------- SRI.DAVIS,S/O/.ANTONY,RESIDING AT VAZHAPPILLY HOUSE,P.O.MATTOM, THRISSUR DISTRICT. BY ADVS. SRI.V.CHITAMBARESH, SRI.T.C.SURESH MENON, SRI.SREEKANTH.K.R, SRI.JIBU P THOMAS, SRI.SUNIL J.CHAKKALACKAL. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. SRI.T.R.BIJU,RESIDING AT THARAYIL HOUSE, P.O. PUNNAYOORKULAM, THRISSUR DISTRICT. 2. SRI.C.GOPI,S/O/.NARAYANAN NAIR, RESIDING AT CHENATTIL HOUSE, PUNNAYOORKULAM P.O.,THRISSUR DISTRICT. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, "U" BROTHERS BUILDING, GURUVAYOOR ROAD, KUNNAMKULAM,THRISSUR DISTRICT. R1 BY ADV. SMT.JAYASREE MANOJ, R3 BY ADV.SRI.S.MAMMU. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1834 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 21st day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P. (MV) No.2170 of 2000 of Motor Accidents Claims Tribunal, Thrissur challenges the judgment and award of the Tribunal dated November 17, 2005, awarding a compensation of Rs.1,46,500/- 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:- The claimant was a Carpenter, aged 30 at the time of the accident and used to earn Rs.5,000/- per month by doing furniture work. On May 25, 2000 the claimant was pillion riding on a motor cycle bearing registration No.KL8- 5099 along Thrissur - Kunnamkulam public road and when they reached at Eranellur, a tempo traveller bearing registration No. KL-8/L 5740 came at a high speed from the opposite direction and dashed against the motor cycle. The MACA 1834/2006 2 claimant sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending tempo traveller by the second respondent. First respondent as the R.C. owner, second respondent as the driver and third respondent as the insurer of the offending tempo traveller are jointly and severally liable to pay compensation to the claimant. 3. O.P.(MV) No.2170 of 2000 was jointly tried along with O.P.(MV) No.1879 of 2000 and a common award was passed. 4. Respondents 1 and 2, the owner and the driver of the offending vehicle remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence on the part of the rider of the motor cycle. 5. Claimant in O.P.(MV) No.1879 of 2000 was examined as PW1 and and Exts.A1 to A 16 were marked on MACA 1834/2006 3 the side of the claimant before the Tribunal. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs.1,46,500/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the learned counsel for the appellant/claimant and the learned counsel for respondents 1 and 3. 7. 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, driver of the tempo traveller, 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 ? 8. The claimant sustained the following injuries, as revealed from Ext.A2 copy of the wound certificate:- 1) Fracture right radius. 2) Fracture mandible left side. 3) Huge swelling over left mandibular area face. MACA 1834/2006 4 4) Degloving injury dorsum of right hand. 5) Lacerated wound right lower leg upper part. 6) Laceration mucara lower hip over sulem. 7) Diffuse swelling mid part of right forearm outer part and swelling left side of forehead. Ext.A2 is the wound certificate issued from Amala Cancer Hospital, Thrissur, which shows that the claimant was admitted in the hospital on 25-5-2000. 9. The Tribunal awarded a total compensation of Rs.1,46,500/-. Break up of the compensation awarded is as under:- Loss of earning : Rs.12,000/- Transportation expense : Rs. 500/- Extra-nourishment : Rs. 500/- Damage to clothing and articles. : Rs. 500/- Expense for treatment : Rs.49,200/- Bystander's expenses : Rs. 3,000/- Pain and sufferings : Rs.15,000/- Permanent disability : Rs.40,800/- Loss of earning power : Rs.10,000/- Loss of better marriage prospects : Rs. 5,000/- Loss of amenities and : Rs.10,000/- enjoyment in life. -------------------- Total : Rs.1,46,500/- ======== 10. Counsel for the claimant sought enhancement of the compensation for the disability caused, for loss of better MACA 1834/2006 5 marriage prospects and for pain and suffering endured. 11. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and took the percentage of disability as 10% and adopted a multiplier of 17 and awarded Rs. 40,800/- for the disability caused. The claimant produced Ext.A13 showing that he was a Carpenter and used to earn Rs.5,000/- per month. In the light of Ext.A13, we are of the view that his monthly income can be reasonably fixed at Rs. 2500/-. 12. Petitioner produced Ext.A16, the certificate of disability which shows that claimant has now post traumatic headache, giddiness, epilepsy, seisures and lack of concentration. In Ext.A16, the doctor has assessed his permanent disability as 20%. Taking into consideration the disability caused to the claimant, we feel that the percentage of disability assessed as 10% by the Tribunal is reasonable. The multiplier adopted by the Tribunal as 17 is not seriously challenged in this appeal. Therefore, for the disability caused, the claimant is entitled to a compensation MACA 1834/2006 6 of Rs. 51,000/- ( 10% x 2500 x 12 x 17). Thus, on this count, the claimant is entitled to an additional compensation of Rs. 10,200/-. 13. The Tribunal awarded Rs. 10,000/- for loss of marriage prospects as the claimant was unmarried. Taking into consideration the disability caused to the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 14. There is another aspect in this case. The Tribunal awarded Rs. 12,000/- for loss of earnings for six months @ Rs. 2,000/- per month. As we have fixed the monthly income of the claimant as Rs. 2,500/-, he is entitled to a compensation of Rs. 15,000/- towards loss of earnings. The Tribunal awarded Rs. 10,000/- for loss of earning power which the claimant is not entitled to as compensation has been awarded for the disability caused. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. In the result, the claimant is entitled to an MACA 1834/2006 7 additional compensation of Rs. 8,200/-. He is entitled to interest @ 7% 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. mn.