IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 MACA.No. 949 of 2004() ---------------------- OPMV.22/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- M.RAZIYA, D/O. ANSARI, PUTHUVALPUTHEN VEETTIL HOUSE, PARUTHIKUKZHI, MANAKKAD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN SRI.SASITH.M.R RESPONDENT(S): RESPONDENTS: --------------------------- 1. S.KRISHNAMOORTHY, S/O.SUBBARAYA PILLAI, 13, KANAPPA MUDALI STREET, TIRUCHENGODU P.O., SALEM DIST., TAMILNADU. 2. A.THANKAVELU, S/O. ARUNACHALAM, DOOR NO.IV/38, MANKUDAM CHAVUTTY P.O., MARIMAL COVIL STREET, SANKAGIRI TALUK, SALEM DIST., TAMILNADU. 3. THE MANAGER, NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, FIRST FLOOR, BHAWARIE MARCI ROAD, SANKAGIRI, SALEM DIST., TAMILNADU. ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.949 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.22/96 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. The claimant sustained the following injuries in a motor accident which occurred on December 5, 1994 near Sree Lekshmi Cinema Theatre at Amballur at about 2.30 a.m. While she was travelling in a car bearing Eg.No.KDE 5544 , a lorry bearing Reg.No.TDY 9952 came from the opposite side and dashed against the car ; 1. Fracture mandible. 2. Laceration left eye brow. 3. Laceration frontal area of scalp. 4. Fracture frontal bone involving orbital plate. 5. Fracture occipital bone. 6. Small extra dural haematoma left frontal. 2. Alleging negligence against the second respondent, driver of the lorry, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,50,000/-. MACA.No.949/2004 2 3. Respondents 1 and 2, the owner and driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the driver of the car. The owner, driver and insurer of the car were subsequently impleaded as respondents 4 to 6 in the O.P. The fourth respondent remained absent. 5th respondent died during the pendency of the O.P. 6th respondent, insurer of the car though entered appearance did not file any written statement. 4. This O.P. was jointly tried along with other O.Ps. filed by the other injured persons in the accident and a common award was passed. Pws 1 to 3 were examined and Exts.A1 to A26 were marked on the side of the claimant. No evidence was adduced on the side of the respondents before the Tribunal. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the second respondent and awarded a compensation of Rs. 28,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal MACA.No.949/2004 3 challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The break up of the compensation awarded is as under : Transportation - Rs. 2,000/- Medical expenses - Rs. 5,000/- Bystander expenses - Rs. 500/- Pain and suffering - Rs.10,000/- Loss of amenities, discomforts suffered and inconvenience caused - Rs. 5,000/- Permanent disability - Rs. 5,500/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for loss of amenities, discomforts and inconvenience, for disfigurement caused and for future treatment expenses. MACA.No.949/2004 4 9. Claimant was a girl aged 12 at the time of the accident. She has suffered a permanent disability of 9% as certified by the Doctor in Ext.A16. The Tribunal awarded a lump sum compensation of Rs. 5,500/- for the disfigurement caused and for permanent disability caused which appears to be very low. Since the claimant is a minor, her annual income can be taken as Rs. 15,000/- and a multiplier of 15 can be adopted as shown in the Second Schedule of Motor Vehicles Act. The percentage of disability shown in Ext.A16 can be in our view accepted taking into consideration the the nature of the disabilities caused to her. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 20,250/- ( 9% x 15000 x 15). Thus, on this count, the claimant is entitled to an additional compensation of Rs. 14,750/-. 10. For loss of amenities, discomforts suffered and inconvenience caused, Rs. 5,000/- was awarded by the Tribunal which appears to be quite inadequate. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. MACA.No.949/2004 5 11. The claimant has sustained a scar on her face. Therefore, for the disfigurement caused, a compensation of Rs. 15,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 39,750/-. She is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal 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. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.949/2004 6 MACA.No.949/2004 7