IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 MACA.No. 989 of 2005 ---------------------- OPMV.301/1996 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL9DISTRICT COURT, KOLLAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- N.BHASKARA PRASAD, BHASKARA VILASOM, ELANGAMANGALAM CHERRY, ENATHU VILLAGE. BY ADV. SRI.S.CHANDRASENAN RESPONDENT(S): --------------- 1. SHAJAHAN ALIAS ANSAR, S/O.SHABUDEEN KOYA, THOPPIL PUTHEN VEEDU, KAYYALAKKAL CHERRY, ERAVIPURAM. 2. UMAIBA BEEVI, W/O.ALIYARU KUNJU, VAZHAVILA VEEDU, UMAYANELLOOR P.O., KOLLAM. 3. D.DAYANANDAN, S.N.NIVAS, VARAMBINAKATH, KOZHENCHERRY VILLAGE. 4. K.M.NABEESA, W/O.ABDUL RAHIMAN HAJI, P.A.HOUSE, KUNNUMMEL, MONIKETH P.O., CHATTARI, KANHANGAD. 5. THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, LIC BUILDING, CHINNAKKAD, KOLLAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 989 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 23rd day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 301/1996 on the file of the First Addl. Motor Accidents Claims Tribunal (District Court), Kollam. In this appeal he challenges the judgment and award of the Tribunal dated April 30, 2004 awarding a compensation of ` 50,900/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on July 27, 1995 at 11.45 a.m. near Sithara Junction in Thazhuthala. While the claimant was travelling in a Maruthi car bearing registration No.KL-14 3853, driven by the third respondent, it collided head on with an Ambassador car bearing registration No.KL-2B/6127, driven by the first respondent. The claimant sustained fracture of both bones of (Rt) forearm, laceration on left leg and (Rt) gluteal region, multiple abrasions on forehead, face, nose, ear, feet, leg etc. Alleging negligence against the drivers of both the M.A.C.A.No. 989/2005 2 vehicle, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 2,00,000/-. 3. First respondent was the driver and second respondent was the owner of the Ambassador car. The third respondent was the driver of the Maruthi car and fourth respondent was its owner. Both the vehicles were insured with the fifth respondent Insurance Company. Respondents 1 and 2, the driver and owner of the Ambassador car, filed separate written statement admitting the accident, but attributed negligence to the third respondent. Respondents 3 and 4, the driver and the owner of the Maruthi car, on the other hand, attributed negligence to the first respondent. The Insurance Company admitted the policies of both the vehicles. 4. PWs.1 to 4 were examined and Exts.A1 to A28 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that there was 90% negligence on the part of the third respondent, the driver of the Maruthi car, and 10% M.A.C.A.No. 989/2005 3 negligence on the part of the first respondent, the driver of the Ambassador car, and awarded a compensation of ` 50,900/- with interest @ 9% p.a. from the date of petition till realization. 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 Company. 6. The following points arise for consideration in this appeal :- 1) Whether the finding of the Tribunal regarding the contributory negligence on the part of the claimant can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation? 7. Point No.1:- The third respondent filed O.P.(MV) No. 302/1996 before the Tribunal claiming compensation, in which the Tribunal assessed a total compensation of ` 1,65,000/- and awarded a compensation of ` 16,500/-. Against that award, he has filed M.A.C.A. No.876/2005. By a separate judgment dated this date we found that there was only 25% contributory M.A.C.A.No. 989/2005 4 negligence on his part and 75% negligence on the part of the first respondent, the driver of the Ambassador car. Therefore, in this appeal we hold that there was negligence to the extent of 75% on the part first respondent, the driver of the Ambassador car, and 25% on the part of the third respondent, the driver of the Maruthi car. 8. Point No.2:- The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of ` 50,900/-. Break up of the compensation assessed is as under:- Loss of earning : ` 2,000 Transportation expenses : ` 2,000 Medical expenses : ` 7,500 Pain and suffering : ` 10,000 Loss of amenities : ` 29,400 ------------------ Total : ` 50,900 ======= 9. The counsel for the claimant has pointed out that no compensation was awarded for the disability caused. He also sought enhancement of compensation for pain and suffering endured by the claimant and on other heads. M.A.C.A.No. 989/2005 5 10. The Tribunal awarded a compensation of ` 29,400/- for the disability caused, but it was shown as compensation for loss of amenities. The Tribunal took the monthly income of the claimant as ` 3,500/-, took the percentage of disability as 7% and adopted multiplier of 10. The claimant was a Dental Hygienist as evidenced by Ext.A14. Ext.A15 is the copy of his income-tax return. Taking into consideration those aspects, we feel that the monthly income of the claimant taken as ` 3,500/- appears to be reasonable. Percentage of disability assessed by the Tribunal as 7% and multiplier adopted as 10 also appear to be reasonable. That being so, for the disability caused, the claimant is not entitled to any enhanced compensation, but towards loss of amenities the claimant is entitled to a compensation of ` 20,000/-. 11. The Tribunal awarded ` 10,000/- for pain and suffering endured by the claimant, which appears to be very low. Having regard to the nature of the injuries sustained, we feel that a compensation of ` 20,000/-would be reasonable on this count. M.A.C.A.No. 989/2005 6 12. The Tribunal awarded ` 7,500/- towards medical expenses. Taking into consideration the nature of the injuries sustained by the claimant and the treatment he had undergone, we feel that a compensation of 10,000/- would be reasonable on this count. 13. ` 2,000/- was awarded towards transportation expenses. In the circumstances of the case, we feel that a compensation of ` 5,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 14. In the result, the claimant is found entitled to an additional compensation of ` 35,500/- with interest @ 7.5% per annum from the date of petition till realization and proportionate cost. As the fifth respondent being the insurer of the both the vehicle, the entire compensation shall be paid by the fifth respondent. This shall be done 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. M.A.C.A.No. 989/2005 7 The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn