IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 MACA.No. 770 of 2009() -------------------------------- OPMV.1969/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER ------------------------------------------ VICTOR, S/O.ANTONY, KANNANAICKAL HOUSE, "VICTOR VILLA", P.O.CHOONDAL, KECHERY, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): RESPONDENTS ---------------------------------------------------- 1. FRANCIS, S/O.ANTONY, NELLISSERY HOUSE, P.O.KANDASSANKADAVU, THRISSUR DISTRICT. 2. M.U.MOHANAN, S/O.UKKUNNY, MANDUMPAL HOUSE, P.O.ANJOORKUNNU, KUNNAMKULAM, THRISSUR DISTRICT. 3. THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, KUNNAMKULAM. R3 BY ADVS. SMT.D.GEETHA R3 BY SMT.K.SHERIN MOHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 770 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 3rd day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1969 of 1997 on the file of the Motor Accidents Claims Tribunal, Thrissur. In this appeal he challenges the judgment and award of the Tribunal dated September 10, 2008 awarding a compensation of Rs.84,075/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The claimant sustained dislocation of right hip joint, crush injury on right leg, crush injury on right hand, injury on forehead and eye brow and injuries on other parts of the body. The accident happened on June 9, 1997 at Puzhakkal, Thrissur while the claimant was driving his car bearing registration No.KLV 950 it dashed against a lorry bearing registration No. KL8/A 2239 driven by the 1st respondent. Alleging negligence against the 1st respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.4 lakhs. MACA 770/2009 2 3. The 1st respondent, driver of the offending lorry filed a written statement admitting the accident, but attributed negligence to the claimant. The 2nd respondent owner of the offending lorry remained absent before the Tribunal. The 3rd respondent the insurer of the offending lorry filed a written statement admitting the policy. Initially the Tribunal by award dated May 9, 2001 disposed of the O.P. along with other O.Ps. filed by other injured persons in the accident and found that the accident occurred due to negligence of the claimant and dismissed the O.P. On appeal by the claimant in M.F.A.No.137 of 2002 this court by judgment dated February 4, 2008 found that the accident occurred due to negligence of the lorry driver as well as the car driver equally and that the claimant was entitled to 50% of the compensation to be assessed and remanded back the matter to the Tribunal. 4. Initially Exts.A1 to A46 were marked on the side of the claimant. Exts.B1 to B3 were marked on the side of the respondents. After remand the Tribunal assessed a total compensation of Rs.1,68,150/- and awarded 50% of the same MACA 770/2009 3 i.e., 84075/- with interest at 7% per annum from the date of petition till realization and proportionate costs. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the claimant and the 1st respondent equally has become final in view of the judgment in M.F.A. No.137 of 2002. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 7. The Tribunal assessed a total compensation of Rs.1,68,150/-. Break up of the compensation assessed is as under:- Loss of earning : Rs. 20,000 Transportation : Rs. 1,000 Extra nourishment : Rs. 1,000 Damage to clothing : Rs. 500 Treatment expenses : Rs. 41,950 Bystander expenses : Rs. 1,900 Pain and suffering : Rs. 15,000 MACA 770/2009 4 Loss of amenities : Rs. 10,000 Disability : Rs. 76,800 ------------------ Total : Rs.1,68,150 ======= 8. The learned counsel for the appellant/claimant sought enhancement of compensation for the disability caused and on other heads. He pointed out that no compensation was awarded for future treatment. 9. The Tribunal took the monthly income of the claimant as Rs.5,000/-, took the percentage of disability as 8%, adopted multiplier of 16 and assessed Rs.76,800/- towards disability caused. The claimant was employed abroad at the time of the accident. He testified as PW1 that he used to get 1400 dollars per month from his employment abroad, which was proved by Ext.A9 letter dated May 30, 1997 issued by his employer. Ext.A43 is the copy of the contract of employment. Taking into consideration all these aspects, we feel that his monthly income can reasonably be fixed at Rs.7,500/-, which comes to Rs.90,000/- per annum. As he was aged 37 at the time of the accident, multiplier adopted by the Tribunal as 16 appears to MACA 770/2009 5 be reasonable. As regards the percentage of disability, it is seen from Ext.A45 disability certificate issued by PW2 that the claimant has suffered 25% permanent disability. PW2 has also issued Ext. A46 certificate to the effect that an operation of total joint replacement is indicated, cost of which comes to Rs.1.4 lakhs. Taking into consideration the nature of the disabilities caused to the claimant as testified by PW2, we feel that 25% permanent disability assessed by PW2 appears to be reasonable. Thus calculated for the disability caused, the compensation comes to Rs.3,60,000/- (Rs.90,000/- x 16 x 25%). The claimant is entitled to 50% of Rs.3,60,000/- i.e., 1,80,000/-. Thus the claimant is entitled to an additional compensation of Rs.1,41,600/- (Rs.1,80,000 – 38,400) on this count. 10. There is another aspect in this case. The claimant has suffered osteoarthritis with right hip – secondary to fracture dislocation of the hip, he has got pain and limp on that side and an operation of total joint replacement is indicated as certified by PW2 in Ext.A46. Taking into MACA 770/2009 6 consideration the above aspect, we feel that a compensation of Rs.50,000/- would be reasonable for future treatment. Thus, the claimant is entitled to 50% of the same i.e., 25,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result, the claimant is found entitled to an additional compensation of Rs.1,66,600/-. He is entitled to interest @ 7 % per annum from the date of petition till realization. The 3rd respondent Insurance Company shall 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 to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn