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 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 MACA.No. 423 of 2009() ------------------------------- OPMV.2822/2003 of PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER IN OP.(MV) --------------------------------------------------------- SURENDRAN, S/O.VELU, 35 YEARS, MULAMUKKIL HOUSE, PO.CHERUMUKKA, VIA., TIRURANGADI,MALAPPURAM BY ADV. SRI.K.M.JAMALUDHEEN RESPONDENT(S): RESPONDENTS IN OP(MV) --------------- 1. SURESH BABU, POLLIKKATHODI MELMURI MALAPPURAM. 2. SATHYAN, S.I,UNNIKKARI, PULIYANJALIL HOUSE, PO.KALLEI, CALICUT. 3. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, KINGS WAY BUILDING, MAVOOR ROAD, CALICUT. 4. K.ABDUL AZEEZ, S/O.MOHAMMED, KOOLANCHERY HOUSE, PO.VELIMUKKU, MALAPPURAM. 5. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, THAZHEPALAM, TIRUR. R1 BY ADVS. SRI.K.M.SATHYANATHA MENON R3 BY SRI.VPK.PANICKER R5 BY SMT.R.REMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 423 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.2822 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. In this appeal he challenges the judgment and award of the Tribunal dated March 6, 2008 awarding a compensation of Rs.95,100/- for the loss caused to him on account of the injuries sustained by him in a motor accident . 2. The accident happened on July 3, 2003 at about 6.30 p.m. while the claimant was travelling in a bus bearing registration No. KL-10/H 4725 it dashed against a jeep bearing registration No. KL-10/B 9124 at Thaleppara. The claimant sustained the following injuries in the accident :- 1) Compound fracture on lower end of right humerous. MACA 423/2009 2 2) Compound fracture on the upper end of ulna and radius right. 3) Grade II open side swipe injury. 4) Lacerated wound over dorsal aspect of right elbow 6 x 1 x 1 cm bone exposed deformity on right elbow. Alleging negligence against 2nd respondent, driver of the offending bus, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2 lakhs. 3. Respondents 1 to 3 are the owner, driver and insurer of the offending bus and respondents 4 and 5 are the owner and insurer of the jeep involved in the accident. Respondents 1, 2 and 4 remained absent before the Tribunal. The 5th respondent, insurer of the jeep, filed written statement contending that the accident was due to the negligence of the 2nd respondent driver of the bus. The 3rd respondent insurer of the bus did not file written statement. PW1 was examined and Exts.A1 to A3 and C1 were marked on the side of the claimant. No evidence was MACA 423/2009 3 adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident happened due to negligence of the 2nd respondent driver of the bus and awarded a compensation of Rs.95,100/- with interest at 7.5 % p.a. from the date of petition till realization against respondents 1 to 3. The claimant has come up in appeal challenging the quantum of compensation. 4. Heard learned counsel for the appellant/claimant and learned counsel for respondents 1 and 5. 5. The finding of the Tribunal that the accident was due to the negligence of the 2nd respondent, driver of the bus, and that the claimant sustained the above mentioned injuries in the accident are not challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The Tribunal awarded a total compensation of Rs.95,100/-. Break up of the compensation amount awarded is as under:- MACA 423/2009 4 Medical Bills : Rs. 7,600/- Incidental charges : Rs. 2,500/- Pain and suffering : Rs. 8,000/- Disability : Rs.72,000/- Loss of income : Rs. 4,500/- Transportation : Rs. 500/- ---------------- Total : Rs.95,100 7. Learned counsel for the claimant sought enhancement of the compensation for the disability caused and on other heads. It is submitted that no compensation was awarded for the loss of amenities and enjoyment in life. 8. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 16%, as certified by the Medical Board in Ext.C1, adopted multiplier of 16 as he was aged 36 and awarded Rs.72,000/- for the disability caused. Taking into consideration the fact that deceased was a driver, as testified by him as PW1 before the Tribunal and as evidenced by his driving licence, we feel that his monthly income can be reasonably be estimated as Rs.2,500/-, which comes to Rs.30,000/- per annum. Percentage of disability as 25% as certified by the MACA 423/2009 5 Medical Board and the multiplier adopted by the Tribunal as 16 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.1,20,000/- (Rs.30,000/- x 16 x 25%). Thus, on this count the claimant is entitled to an additional compensation of Rs.48,000/-. 9. Tribunal awarded Rs.4,500/- for loss of income for three months at the rate of Rs.1,500/- per month. As we have fixed his monthly income as Rs.2,500/-, he is entitled to a compensation of Rs.7,500/- on this count. 10. The claimant sustained the following disabilities, as revealed from Ext.C1 certificate issued by the Medical Board:- 1) Deformed right upper arm due to side-swipe injury sequela. 2) Ankylosis of right elbow with loss of movements possible at 140 percentage .. In the light of the above disabilities caused to the claimant, we feel that a compensation of Rs.10,000/- for the loss of amenities and enjoyment in life would be reasonable. As MACA 423/2009 6 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 an additional compensation of Rs.61,000/- with interest @ 7.5% from the date of petition till realization. The 3rd respondent/Insurance Company is directed to 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 as above. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.