IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 MACA.No. 667 of 2003() ---------------------- OPMV.1182/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/CLAIMANT. --------------------------------- B.VIJAYAKRISHNAN NAIR, S/O.LATE E.BHASKARAN NAIR, NANDUVIHAR, MGRA-35, MAHARAJA LANE,ANAYARA P.O. THIRUVANANTHAPURAM. BY ADV. MR.NAGARAJ NARAYANAN MR.NAIR AJAY KRISHNAN MR.SAIJO HASSAN MR.A.S.SABU RESPONDENTS/ RESPONDENTS IN THE O.P. -------------------------------------- 1. ANIL, HOUSE NO.13/723, PUTEHNVILA VEEDU, POWDIKONAM P.O. VIA.SREEKARIYAM THIRUVANANTHAPURAM. 2. DILEEPKUMAR, MAHESH VILLA, AMBEDKAR GRAMOM, PANANGODE, VENGANOOR P.O. THIRUVANANTHAPURAM. 3. THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, THAKARAPPARAMBU JUNCTION, PAZHAVANGADI, THIRUVANANTHAPURAM. R1 BY ADV. SRI.G.SUDHEER R3 BY ADV. SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rkc P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ ----------------------------- M.A.C.A. No.667 of 2003-C ------------------------------ Dated this the 21st day of December, 2009. J U D G M E N T P.R.Ramachandra Menon J The appellant sustained injuries on 7.5.2000, when the scooter bearing registration No.KBV/1776 ridden by him collided with a motor cycle bearing Registration No.KL-01/J.2604 ridden by the second respondent and insured by the third respondent, which came from the opposite direction. The claim petition was preferred attributing negligence on the part of the second respondent, rider of the motor cycle. 2. The claim was resisted mainly from the part of the third respondent/insurer contending that the accident was only because of the negligence of the claimant himself and that the insurer of the motor cycle was not liable to satisfy the claim. The above claim petition was considered and heard along with the connected claim petition preferred by the pillion rider of the scooter (which was driven by the claimant). The evidence consists of the oral testimony of PW1 and 2 and Exts.A1 to A23 marked on the part of the claimant M.A.C.A. No.667 of 2003-C 2 and also Ext.B1 copy of the insurance policy produced from the part of the insurer. 3. After perusing the materials on record, the Tribunal held that the accident occurred was only because of the negligence on the part of the second respondent/rider of the motor cycle and that the injuries sustained by the claimant are liable to be compensated by the parties concerned. 4. With regard to the quantum of compensation payable in the instant case, the Tribunal has referred to the injuries sustained by the appellant/claimant, as revealed from Ext.P15 wound certificate and discussed in para 9 of the award. Taking note of the adverse consequences resulted, the Tribunal awarded various amounts such as Rs.10,000/- towards pain and suffering, Rs.17,831/- towards loss of earning and interest of the leave availed for 57 days on medical ground, Rs.1,000/- towards transportation, Rs.500/- towards damages and clothing, Rs.2,500/- towards medical expenses, Rs.15,360/- as compensation in respect of the permanent disability and a sum of Rs.8,000/- towards loss of amenities and enjoyment in life, thus granting a total compensation of Rs.55,191/- which was directed to be satisfied by the third respondent/insurer with interest at the rate of 9% per annum from M.A.C.A. No.667 of 2003-C 3 the date of application till realization. 5. The learned counsel appearing for the appellant submits that the Tribunal has fixed the monthly income of the appellant as Rs.9,385/- accepting the salary certificate produced as Ext.A21. However, the Tribunal reckoned only Rs.2,000/- as the notional monthly income for working out the compensation payable in respect of 'loss of earning power' resulted because of the certified permanent disability of 8% and that too, adopting the multiplier of '8'. According to the learned counsel for the appellant, the multiplier itself ought to have been 15 since the injured was only aged 42 years. 6. The learned counsel for the Insurance Company submits that there is no case for the appellant/claimant that there was any loss of employment or loss of income by virtue of the accident or the disability caused. It is also pointed out that the Tribunal has reckoned the appropriate multiplier as '8', considering the possible chance of reduction in loss of income in the 'post retirement' period. 7. On going through the materials on record, it is seen that the finding and reasoning given by the Tribunal are very much correct and sustainable. With regard to the fixation of quantum, the amount awarded under various heads appear to be very much in M.A.C.A. No.667 of 2003-C 4 conformity with the actual facts and do not require to be modified in most cases. The entire disability of 8% as certified in Ext.P19 disability certificate has been accepted by the Tribunal, notwithstanding the fact that the doctor who issued the certificate was not examined before the Tribunal. It is also true that the monthly income of the claimant as certified in the salary certificate has been accepted, but observing that there was no loss of income or salary because of the accident and the consequences resulted (except with regard to the post retirement session), the Tribunal fixed the 'post retirement income' likely to be procured by the appellant at Rs.2,000/-. Considering the fact that the claimant would be above 55 years on retirement, the appropriate multiplier in respect of such persons who have crossed the age of 55 years as stipulated under the second schedule ('8') was reckoned for calculating the compensation in respect of the loss of earning capacity fixed as Rs.15,385/- which does not require any modification. Considering the fact that the claimant had availed the leave of 57 days on medical ground, the loss of earning has been correctly assessed by the Tribunal as Rs.17,831/- and the same has been awarded. The only ground if at all some interference is required, is in respect of the compensation awarded towards the M.A.C.A. No.667 of 2003-C 5 'loss of amenities and enjoyment in life'. The Tribunal has awarded Rs.8,000/- under this head. The nature of injuries as revealed from Ext.A15 wound certificate and the permanent disability of 8% resulted therefrom as certified in Ext.A19 and the consequences resulted as discussed in para 9 of the Award persuade us to award a further sum of Rs.7,000/- under this head. The amount awarded under other heads appear to be adequate and hence do not require any interference. In the result, the appellant is entitled to be get a further sum of Rs.7,000/-. The said amount shall carry interest at the rate of 7% per annum from the date of the petition, till the date of realisation. We direct the third respondent/insurance company to deposit the said amount with interest as aforesaid, as expeditiously as possible, at any rate within two weeks from the date of receipt of a copy of this judgment. The appeal is allowed in part. No cost. Sd/- P.R.RAMAN (JUDGE) Sd/- P.R.RAMACHANDRA MENON (JUDGE) //True Copy// ab P.A TO JUDGE