IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 MACA.No. 2112 of 2008() ----------------------- OPMV.1063/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER: ------------------ SAJU SEBASTIAN 26 YEARS, S/O.KALLARAKKAL SEBASTIAN(LATE) PO.PULLUT, CHAPPARA, THRISSUR. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENTS/RESPONDENTS: --------------------- 1. SUVARNA, W/O.KALAPPTT DAYANANDAN CHANDAPURAM PO., KODUNGALLUR THRISSUR. 2. REGHUNATH, S/O.PARAPPURATH KALARIKKAL BALAKRISHNAPANICKER PO.KODUNGALLUR, ZHUVATHKADAVAU, THRISSUR. 3. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, NORTH NADA, MANAPPAT BUILDING, KODUNGALLUR. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------- M.A.C.A. NO. 2112 OF 2008 ------------------------------- DATED THIS THE 24TH DAY OF MAY, 2011 JUDGMENT The petitioner in OP(MV).No.1063/2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda is the appellant. The Tribunal permitted the petitioner to realise a compensation of Rs.52,800/- from respondents 1 and 2 jointly and severally with interest at the rate of 7% per annum. This appeal is preferred by the claimant seeking enhanced compensation. 2. The appellant sustained injuries in a motor accident on 2/5/2004. While he was riding on his motorcycle he was hit down by the autorickshaw driven by the 2nd respondent in the said OP. Both sides adduced evidence in support of their contentions. Exts.A1 to A6 were marked on the side of the petitioner and Ext.B1 insurance policy certificate was marked on the side of the contesting respondent. The appellant/petitioner was admitted in the -2- MACA.No.2112/2008 hospital as an inpatient for 8 days with abrasion over the left shoulder and fracture of lateral end of left clavicle and upper border of scapula. There was also a fracture of the supra orbital margine with depression of frontal bone. In these circumstances, the Tribunal accepted the disability certificate as evidence and held that the disability will come to 3% permanent whole body disability. Reasons are stated for accepting the disability certificate issued by the doctor. 3. The learned counsel for the appellant contended that the percentage of disability fixed by the Tribunal is too low and the compensation calculated on the basis of 3% disability is inadequate and therefore requires re-consideration. I have already narrated the injuries sustained by the appellant and his present condition due to the depression of frontal bone. In these circumstances, the fixation of 3% permanent disability is not quite proper. When the doctor certified that the permanent disability caused due to the injuries is 8%, the Tribunal should have fixed a reasonable percentage towards permanent disability. Relying on Ext.A5 disability -3- MACA.No.2112/2008 certificate this Court is of the view that the percentage of disability can be fixed as 5%. 4. The monthly income fixed is Rs.2,000/-. The fixation of monthly income is too low and inadequate. Therefore, three months' loss of income fixed by the Tribunal at the rate of Rs.2,000/- per month requires modification. Rs.3,000/- per month is a reasonable estimate of monthly income. The income at the rate of Rs.3,000/- per month can be granted for loss of income. The appellant/petitioner is therefore entitled to an additional compensation of Rs.3,000/- under the said head. On 5% whole body disability, the compensation payable for permanent disability is worked out at Rs.21,400/-. Thus, the appellant/petitioner is entitled to an additional compensation of Rs.24,400/-. Appellant is not entitled to enhance compensation under other heads for want of sufficient proof. 5. The Tribunal found that the driver had no licence at the time of accident and therefore the Insurance Company cannot be made liable. On that basis the petitioner was allowed to realise -4- MACA.No.2112/2008 the compensation from respondents 1 and 2 jointly land severally. Relying on the various decisions including the latest decision reported in Kusum Lata & others v. Satbir and others (AIR 2011 SC 1234), the learned counsel for the appellant submits that the Insurance Company is liable to satisfy the award in favour of third party at the first instance and then to recover the amount from respondents 1 and 2. In the above circumstances, the Insurance Company is directed to make payment of the compensation by cash deposit in the Tribunal or by way of demand draft, or by way of a cheque in the name of the appellant/claimant within two months from today. Appeal is partly allowed. The impugned award passed by the Tribunal is modified to the said extent. No order as to costs. HARUN-UL-RASHID, Judge kcv.