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 23RD MARCH 2010 / 2ND CHAITHRA 1932 MACA.No. 475 of 2005() ---------------------------------- OPMV.225/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, WAYNAD, KALPETTA .................... APPELLANT/PETITIONER. -------------------------------------- C. SUNILKUMAR, S/O.SIVANANDAN, CHITRAMPATE HOUSE, POST KALPATTA, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/RESPONDENTS. ------------------------------------------------ 1. A. PHALGUNAN, S/O.KRISHNAN, KRISHNA BAKERY, MUTTIL POST, KALPATTA VIA, VYTHIRI TALUK, WAYANAD DIST. (OWNER CUM DRIVER OF KL 12/410, AUTORICKSHAW D.L.NO.239/85/W BADGE NO. 5/89/W). 2. UNITED INDIA INSURANCE CO.LTD., MAIN ROAD, KALPATTA. (INSURER OF KL 12/410 POLICY NO. 100306/31/60/95/3902, VALID FROM 18/3/96 TO 17/3/97). R2 BY ADV. SRI.AGINOV MATHAPPAN, SMT.K.SHERIN MOHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=-=-=-=-= M.A.C.A. No. 475 of 2005 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-==-=-=-=-= Dated this the 23rd day of March, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.225 of 1997 of the Motor Accidents Claims Tribunal, Wayanad, Kalpetta challenges the judgment and award of the Tribunal dated April 19, 2004, awarding a compensation of Rs.59,287/- (mistakenly shown as Rs.59,787/- by the Tribunal) for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these:- The claimant was aged 26 at the time of the accident and used to earn Rs.4,000/- as an Automobile Mechanic, according to the claimant. On March 15, 1997 at about 10.30 p.m. while the petitioner was traveling in an auto- rickshaw bearing registration No. KL-12/410, driven by the first respondent, and reached near the ware house, Kalpetta, due to the rash and negligent driving of the auto- MACA 475/2005 2 rickshaw, it toppled down. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending auto-rickshaw by the first respondent. The first respondent as the owner-cum-driver and second respondent as the insurer of the offending auto-rickshaw are jointly and severely liable to pay the compensation to the claimant. The claimant claimed a compensation of Rs.4 lakhs. 3. The first respondent, owner-cum-driver of the offending auto-rickshaw, filed a written statement, admitting the accident and contending that there was no negligence on his part and that when he tried to save a pedestrian, the auto- rickshaw fell into a gutter and capsized. The second respondent, insurer of the offending auto-rickshaw, filed written statement, admitting the policy and further contending that the first respondent had no valid driving licence to drive the auto-rickshaw and that therefore, the second respondent is not liable to pay any compensation to the claimant. MACA 475/2005 3 4. The claimant was examined as PW1 and Exts. A1 to A8 were marked on his side. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.59,287/- (mistakenly shown as Rs.59,787/- by the Tribunal) with interest at the rate of 6% 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 learned counsel for the appellant and learned counsel for the respondents. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not seriously challenged in this appeal. Therefore, the only question for consideration is whether the claimant is entitled to any enhanced compensation. 7. The injury sustained by the claimant is the amputation of right thumb. Ext.A3 is the wound certificate. Ext.A4 is the treatment-cum-disability certificate. Ext.A7 is MACA 475/2005 4 the certificate of disability issued by the Medical Board, which shows that the claimant has permanent disability at 29% and functional disability of 48% due to the loss of right thumb. 8. The Tribunal awarded a total compensation of Rs.59,287/-, but it is mistakenly shown as Rs.59,787/- in the award of the Tribunal. The break up of the compensation awarded is as under:- Loss of earning : Rs.3,000/- Transport to hospital : Rs.750/- Extra nourishment : Rs.500/- Damage to clothing : Rs.250/- Medical expenses : Rs.1,087/- By-stander’s expenses : Rs.1,300/- Pain and suffering : Rs.10,000/- Loss of amenities : Rs.Rs.5,000/- and enjoyment of life. Disfiguration : Rs.5,000/- Disability caused : Rs.32,400/- ------------------ Total : Rs.59,287/- ======= 9. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused. There is force in the above contention of the appellant. The Tribunal took monthly income of the MACA 475/2005 5 claimant as Rs.1,500/-, assessed disability at 15% and awarded a compensation of Rs.32,400/- for the disability caused, which, in our view, is very low. Taking into consideration the fact that the claimant was working as an Automobile Mechanic, we feel that his monthly income can reasonably be fixed as Rs.2,500/-. The multiplier adopted by the Tribunal as 18 is not seriously disputed. The percentage of disability taken by the Tribunal as 15% appears reasonable. Thus, for the disability caused the claimant is entitled to a compensation of Rs.81,000/- (2500 x 12 x 18 x 15/100). Thus, the claimant is entitled to an additional compensation of Rs.48,600/- on this count. 10. The Tribunal awarded for loss of earnings for two months Rs.3,000/- at the rate of Rs.1,500/- per month. As we have found that his monthly income can be fixed at Rs.2,500/-, he is entitled to a compensation of Rs.5,000/- towards loss of earnings i.e., for two months at the rate of Rs.2,500/- p.m. Thus, the claimant is entitled to an additional compensation of Rs.2,000/- on this count. As regards the compensation MACA 475/2005 6 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.50,600/-. The total compensation assessed by the Tribunal is Rs.59,287/-, but the Tribunal passed an award for Rs.59,787/-, which is only a clerical error. Therefore, the award passed by the Tribunal is corrected as Rs.59,287/-. He is entitled to interest @ 9% p.a. from the date of petition till realization. The second respondent being the insurer of the offending auto-rickshaw, shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn