IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 MFA.No. 374 of 2003() --------------------- OPMV.998/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): PETITIONER ------------------------ SAJEEV PANICKER S/O. SUKUMARA PANICKER, OOMAPARAMBIL, KUTHIRAPANTHY WARD, ALAPPUZHA. BY ADV. SRI.BEPIN VIJAYAN RESPONDENT(S): --------------- 1. DAMODARAN PILLAI S/O. RAMAKRISHNA PILLAI T.C.NO.41/673, PUDUNAGAR, MANACAUD, THIRUVANANTHAPURAM 2. THE NEW INDIA ASSURANCE CO. LTD., OPPOSITE TO ANNA STADIUM, PALAMORE ROAD, NAGERCOIL. 3. AJAYAKUMAR S/O. KELAPPA PILLAI, THENKARA KIZHANGU VITAKATHU PUTHEN VEEDU, THAKKALA P.O., NAGARCOIL VILLAGE, KANYAKUMARI DISTRICT ADV. SRI.P.MURALEEDHARAN FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- MFA No. 374 of 2003 ----------------------------------- Dated, this the 4th day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. The appeal is for enhancement of compensation awarded by the Tribunal in respect of serious injuries sustained by the claimant who happened to lose his right leg amputated just above the knee. 2. The sequence of events discussed by the Tribunal shows that the accident occurred on 04.06.1998 at about 7.15 p.m. The appellant/claimant was riding his bicycle along the side of NH 47 from the north to the south and when he reached the spot of occurrence, a lorry bearing No. KET 9403 driven by the additional 3rd respondent came from behind and knocked him down causing serious injuries which led to the claim. 3. It was the case of the claimant that he was engaged as a spray painting worker in a workshop, obtaining a monthly salary of Rs.4,000/- and that the amputation of the right leg has resulted in 40% of permanent disability as certified in Ext.A8 disability certificate. It was also contended that he was not in a position to do any job and hence the compensation sought for. MFA No. 374 of 2003 2 4. The owner and driver of the lorry did not contest the matter and were set exparte, under which circumstance, the insurer was permitted to have wider difference under Section 170 of the Motor Vehicles Act. 5. The evidence consists of the oral testimony of the claimant examined as PW1 and the deposition of PW2 who issued Ext.A7 salary certificate. Even though it has been observed by the Tribunal in paragraph 6 of the Award that the documentary evidence consists of only Exts.A1 to A5, we find that the claimant had also produced and marked Exts.A6, A7 and A8 in support of his claim. 6. After discussing the evidence on record, the Tribunal held that the accident was only because of the negligent driving of the lorry by the additional 3rd respondent. The Tribunal, while proceeding to fix the quantum, observed that the claimant was aged 31 years at the time of accident and that he was a spray painting worker. Taking note of the nature of evidence tendered by PW1 and PW2 and also considering Ext.A7 salary certificate showing the monthly income of the claimant as Rs.4,000/-, the Tribunal observed that the entire amount as certified in Ext.A7 could not be taken into account, as the employment was not a permanent one. Accordingly, the Tribunal reckoned Rs.3,000/- as the monthly income and awarded a lump sum compensation of Rs.1,00,000/- towards the permanent disability, besides awarding a sum of Rs.1,80,000/- towards the compensation for the loss of earning power; thus granting a total sum of Rs.2,80,000/- in respect of the disability and consequences resulted. The Tribunal also awarded various amounts under MFA No. 374 of 2003 3 other heads such as Rs.3,000/- towards loss of earning of one month, Rs.500/- towards the transportation, Rs.400/- towards the damage to clothing, Rs.1,000/- towards extra nourishment, Rs.500/- towards medical expenses, Rs.250/- towards bystander’s expenses, Rs.500/- towards the treatment expenses, Rs.15,000/- towards pain and suffering etc., thus taking the total figure to Rs.3,01,150/-, which has ordered with interest at the rate of 9% per annum from the date of the petition, with cost. Since the Insurance coverage was admitted from the part of the insurer, the liability was ordered to be satisfied by the 3rd respondent Insurance Company. 7. The learned counsel for the appellant submits that despite production of Ext.A8 disability certificate issued by the Medical Board certifying the permanent disability as 40%, the Tribunal has awarded only a lump sum figure of Rs.1,00,000/- and contended that the entire certified extent of disability ought to have been considered and adequate compensation should have been awarded, as specifically contended in Ground B of the memorandum of appeal. It is pointed out that the income fixed by the Tribunal is also much on the lower side. 8. Considering the entire facts and figures, particularly for the reason that the claimant had examined the employer who had issued Ext.A7 salary certificate and further since no contra evidence was adduced from the part of the respondents, particularly from the part of the insurer by producing any document or by examining any witness, we find it fit and proper to have the monthly income raised as Rs.3,500/- instead of Rs.3,000/- fixed by the MFA No. 374 of 2003 4 Tribunal. On re working the compensation payable, adopting the multiplicand as above and also the multiplier as 17 (taking into the fact that the claimant’s age was 31 years), the loss of earning power will exceed the total figure of Rs.2,80,000/- now awarded by the Tribunal (separately as Rs.1,00,000/- for the disability, Rs.1,80,000/- for the loss of earning power) by a further sum of Rs.5,600/- (3500 x 12 x 17 x 40/100 = 2,85,600). We award the same accordingly. It is to be noted that absolutely no amount has been awarded by the Tribunal towards the loss of amenities and enjoyment in life. The claimant is an able bodied youth of 31 years and the serious injuries and the disabilities have obviously resulted in much hardships in this regard. In the said circumstances, we award a further sum of Rs.25,000/- under this head as well. In the result, the appellant shall be entitled to get a further sum of Rs.30,600/- over and above compensation awarded by the Tribunal. We make it clear that the said amount will carry interest only at the rate of 7% per annum. We direct the 2nd respondent Insurance Company to deposit the said amount with interest, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc