IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 MACA.No. 964 of 2009 ---------------------- OPMV.2286/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): CLAIMANT. --------------------------------- G.S.SARATH CHANDRA BOSE @ SARA CHANDRA BOSE, S/O.GOPALAN, KOLIAMPARAMBIL HOUSE, AVALOOKKUNNU P.O., KOTTANKULANGARA WARD, SOUTH ARYAD, ALAPPUZHA. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): RESPONDENTS. --------------------------- 1. DR.MANOJ.P,S/O.PADMANABHAN NAIR, SENIOR SPEPCIALIST (VTS DEPT), AMRUTHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM P.O., KOCHI, RESIDING AT GOKULAM VEETTIL, JANATHA ROAD, VYTTILA BHAGAM, ERNAKULAM. 2. THE NEW INDIA ASSURANCE COMPANY LIMITED, ALAPPUZHA. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 964 OF 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 30th day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 2286 of 2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha. In this appeal he challenges the judgment and award of the Tribunal dated March 19, 2007 awarding a compensation of Rs.7,03,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The claimant sustained the following injuries in the motor accident :- “Brust fracture of D12 vertebra with retropulsion of the posterior part of the body resulting in significant Canala stenosis on lumbar spine, bilateral laminar fracture seen on Lumbar Spine, Type III compound fracture lower third of tibia and fibula both bones of left leg, posterior dislocation of right elbow, fracture T12 with complete paraplegia of lombar spine caused no sensation and paralysis with wasting in full length of both legs, serious fracture with exposed bones of left leg and spine, grade “O” power in all muscle groups of lower limb with no sensation below L1 level, 3 x 5 cms. wound over the anterior aspect of lower 3rd of the left leg and MACA 964/2009 2 minor abrasion over the lateral aspect of elbow.” 3. The accident happened on July 23, 2002 at about 5.15 a.m. while the claimant was riding his motor cycle along Alappuzha – Ernakulam NH 47 and when he reached in front of General Auto Sales, Pathirappalli, he was knocked down by a car bearing registration No.KL-7/Y 6706, 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.12 lakhs. 4. The 1st respondent, owner-cum-driver of the offending car, remained absent before the Tribunal. The 2nd respondent, insurer of the offending car, filed a written statement admitting the policy but attributed negligence to the claimant . 5. 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 the accident occurred due MACA 964/2009 3 to negligence of the 1st respondent and awarded a compensation of Rs.7,03,000/- with interest @ 7.5% p.a. from the date of petition till realization and cost of Rs.7,000/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the 1st respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 8. The Tribunal awarded a total compensation of Rs.7,03,000/-. Break up of the compensation awarded is as under:- Loss of earning : Rs. 32,600/- Cost of medicine and treatment : Rs.2,00,000/- charges. Bystander's expenses : Rs. 25,000/- MACA 964/2009 4 Transportation charges : Rs. 12,000/- Extra nourishment : Rs. 2,500/- Damage to motor cycle : 900/- Pain and suffering : Rs. 50,000/- Loss of amenities : Rs. 25,000/- Permanent disability and : Rs.3,55,000/- loss of earning power. ------------------ Total : Rs.7,03,000/- ======= 9. The learned counsel for the appellant/claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment in life. The learned counsel also pointed out that no compensation was awarded for future treatment. 10. The Tribunal took the monthly income of the claimant as Rs.5,432/- for 30 months i.e., up to his date of retirement, then took the percentage of disability as 100% and awarded a compensation of Rs.1,65,960/-. Thereafter the Tribunal took his monthly income as Rs.2,000/-, adopted multiplier of 8 and awarded a compensation of Rs.1,92,000/- towards disability caused. The total compensation awarded on this count by the Tribunal is Rs.3,55,000/-. MACA 964/2009 5 11. Ext.A21 salary certificate of the claimant shows that he was working in Autokast Ltd., Cherthala and was earning a salary of Rs.6,068/- per month. In the normal case he would have retired from service on superannuation on August 31, 2005. Therefore in our view the Tribunal is justified in taking his income as Rs.5,432/- per month and awarding Rs.1,65,960/- towards loss of earning till his retirement. Taking into consideration the above aspect, after his retirement his monthly income can be taken as Rs.3,000/-. The date of birth of the claimant is August 14, 1947, as evidenced from Ext.A20 copy of third page of SSLC book. The accident was occurred on March 27, 2002. Therefore, he was aged 54 at the time of the accident. That being so, the multiplier of 8 adopted by the Tribunal appears to be reasonable. Thus, calculated for the disability caused and for loss of earning after retirement, the claimant is entitled to a compensation of Rs.2,88,000/- (Rs.3,000/- x 12 x 8). Thus, the claimant is entitled to an additional compensation of Rs.96,000/- (Rs.2,88,000 – Rs.1,92,000). MACA 964/2009 6 12. The Tribunal awarded a compensation of Rs.25,000/- for loss of amenities and enjoyment in life. The claimant was completely bedridden. Ext.A18 disability certificate issued by Dr.Renjith Kumar, Associate Professor, Department of Orthopaedics, Amritha Institute of Medical Science and Research Centre, Ernakulam would show that his paraplegia is unlikely to recover. Ext.A19 certificate issued by the Urologist shows that the claimant is dependent on others for his daily activities. Therefore, we feel that an additional compensation of Rs.50,000/- would be reasonable on this count. 13. There is another aspect in this case. The Tribunal did not award any amount for future treatment expenses. As the claimant has become paraplegie, he requires future treatment. Therefore, we feel that a compensation of Rs.50,000/- 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. MACA 964/2009 7 14. In the result, the claimant is found entitled to an additional compensation of Rs.1,96,000/- with interest @ 7.5% per annum from the date of petition till realization and proportionate cost. The 2nd respondent 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