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 30TH MARCH 2010 / 9TH CHAITHRA 1932 MACA.No. 267 of 2006() ---------------------- OPMV.1696/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/PETITIONER ---------------------------------- RIYAS, S/O.ABDUL AZEEZ, AGED 29 YEARS, PADIPPURACKAL HOUSE, MULLACKAL WARD, ALAPPUZHA. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): RESPONDENTS --------------- 1. PREETHA.V.D, D/O.V.D.DAMODHARAN, VELIPARAMBIL HOUSE, SOUTH ARYAD, ALAPPUZHA. 2. D.SANAL, S/O.DIVAKARAN, BHYMI MANDIRAM, THIRUMALA WARD, ALAPPUZHA. 3. UNITED INDIA INSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, MULLACKAL, ALAPPUZHA. 4. ANSARY, S/O.PAREETHU VAVA, PADIPPURACKAL HOUSE, MULLACKAL WARD, ALAPPUZHA. (DELETED) 5. THE NEW INDIA ASSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, MULLACKAL, ALAPPUZHA. Fourth respondent deleted from the party array as per order dated 19-2-2010 in I.A.No.428/2010. ADV. SRI.P.MURALEEDHARAN FOR R3 SRI.C.S.MANU FOR R2 SRI.P.G.GANAPPAN FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.267 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1696/1998 of Motor Accidents Claims Tribunal, Alappuzha challenges the judgment and award of the Tribunal dated October 6, 2004 awarding a compensation of Rs. 1,15,633/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was aged 21 at the time of the accident. He was employed as a Marketing Executive in M/s. Silver Star Cable Corporation and was earning Rs. 48,000/- per annum, according to him. On November 7, 1997 at about 9.a.m., the claimant was pillion riding on the motor cycle bearing Reg.No. KRY 4625 ridden by the fourth respondent . When they reached near St.Antony's High School, Konnakkappally temple road in Mullackal, a car bearing Reg.No. KL-4/A-5616 came at a high speed from the opposite side and dashed MACA.No.267/2006 2 against the motor cycle of the claimant. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending car by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending car are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 5 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending car remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending car, filed a written statement admitting the policy, but contending that there was also negligence on the part of the rider of the motor cycle. The fourth respondent, the rider of the motor cycle, remained absent. The fifth respondent, the insurer of the motor cycle filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the driver of the car. 4. PWs 1 to 4 were examined and Exts.A1 to A22 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an MACA.No.267/2006 3 appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending car by second respondent and awarded a compensation of Rs. 1,15,633/-. The claimant has 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 companies. 6. 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 is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ? 7. The claimant sustained the following injuries as revealed from Ext.A4, copy of the wound certificate and Ext.A6, copy of the discharge summary issued from Sahrudaya Hospital, Thathampally : Lacerated wound on the right knee joint, multiple abrasion on the right knee joint and upper part of leg, tenderness and swelling on the upper 1/3 of leg. Movement of knee was restricted. Fracture MACA.No.267/2006 4 of lateral condyle right, fracture of fibula right and haemarthrosis. He was admitted on November 7, 1997 and was discharged on November 19, 1997. Ext.A7 to A9 are treatment slips. Ext.A10 is the O.P. ticket. Ext.A11 is the treatment certificate. Ext.A11 is the disability certificate which shows that claimant has now 18% disability. 8. The Tribunal awarded a total compensation of Rs. 1,15,633/-. The break up of the compensation awarded is as under : Pain and suffering -Rs. 12,000/- Loss of income for 3 months @ Rs. 2,000/- per month -Rs. 6,000/- Medical expenses -Rs. 4,633/- Damage to clothing, extra nourishment and transport to hospital - Rs. 3,000/- Disability caused, loss of amenities and enjoyment of life and loss of future earning capacity -Rs. 90,000/- ---------------- Total -Rs. 1,15,633/- ========== 9. Counsel for the appellant/claimant sought enhancement of MACA.No.267/2006 5 compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and adopted a multiplier of 17 and awarded Rs. 90,000/- for the disability caused. The counsel for the appellant/claimant submitted that the Tribunal should have accepted Ext.A21, the certificate of village officer and fixed the income of the claimant as Rs. 4,000/- per month as stated therein. We are of the view that Ext.A21 cannot be accepted completely. The village officer as PW3 testified that it was on the basis of information given by PW1, he estimated the income of claimant. Therefore, we are not accepting Ext.A21 in toto. The claimant has testified as PW1 that as a Marketing Executive of Silver Star Cable Corporation, he used to get a salary of Rs. 3,000/-. But no document is produced to prove the same. Other certificates produced by him shows that PW1 is a weight lifter. As PW1 he has also testified that he was acting in serials and cinemas. Taking into consideration all these aspects, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. The multiplier adopted by the Tribunal as 17 is not seriously challenged. The disability assessed by the Tribunal as 18% is also not disputed. Thus calculated for the disability caused, the claimant is entitled to a MACA.No.267/2006 6 compensation of Rs. 1,10,160/-. Thus, on this count, the claimant is entitled an additional compensation of Rs. 20,160/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 10. In the result, the claimant is found entitled to an additional compensation of Rs. 20,160/-. He is entitled to interest @ 7.5% per annum for the said amount 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.267/2006 7 MACA.No.267/2006 8