IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 MACA.No. 1021 of 2006() ----------------------- OPMV.1160/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/3RD RESPONDENT --------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY ---------------------------------------------------------- 1. M.S.JANARDANAN, S/O. SREEDHARAN, AGED ABOUT 42 YRS, MOOTHEDATH HOUSE, BRAHMAPURAM, AMBALAMEDU. 2. M.D.ISMAIL, S/O. KHALANDER KHAN, CITIZEN AUTO DIESEL WORKS, HASSAN-573 201. 3. KHALIN, S/O. SHANOOR, D.NO.1866, IIND CROSS ROAD, PENSION MOHALLA, HASSAN-573 201. ADV. SRI.MATHEWS K.PHILIP FOR R.1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1021 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent, the Insurance Company, challenges the judgment and award of Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) No.1160/1998 dated October 17, 2005 awarding a compensation of Rs. 7,41,286/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts in brief are these : First respondent in this appeal is the claimant in the claim petition before the Tribunal. He claimed a compensation of Rs.7,67,000/- for the loss caused to him on account of the injury sustained in a motor accident. The case of the claimant was that on April 12, 1999 at about 7.30 p.m. while he was riding his scooter along Aluva-Tripunithura road and when he reached at Ambalamughal, a lorry bearing Reg.No. KA-12/499 driven by the first respondent came at a high speed from the opposite side and dashed against his scooter. MACA.No.1021/06 2 Claimant sustained very serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of offending lorry by the second respondent . First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. 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 contending that the accident occurred due to the negligence of the claimant. 4. Exts. A1 to A16 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 7,41,286/-. The Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard learned counsel for the appellant, Insurance Company and the first respondent, claimant. 6. The accident is not disputed. The finding of the Tribunal MACA.No.1021/06 3 that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent is not challenged in this appeal. Therefore,the main question for consideration is whether the compensation awarded by the Tribunal is excessive. 7. The Tribunal awarded a total compensation of Rs. 7,41,286/- The break up of the award amount is as under : Compensation for disability - Rs.4,80,000/- Pain and suffering -Rs. 50,000/- Transport to hospital -Rs. 2,000/- Extra nourishment,bystander etc. -Rs. 10,300/- Loss of earnings for one year -Rs. 60,000/- Medical bills -Rs.1,38,986/- --------------- Rs.7,41,286/- =========== 8. The appellant mainly disputed the compensation awarded for the disability caused. Claimants sustained lacerated wound 5 x 1 cm. on the left side of forehead and blackening on the left eye brow 1 x 0.5 cm. Ext.A3 is the copy of the wound certificate issued from Medical Trust Hospital, Ernakulam. Evacuation of the massive extradural haematoma was done under general anaesthesia. CT scan of the brain showed massive extra dural haematoma with middle shift on the left fronto temperoparietal region. Ext.A4 is the discharge MACA.No.1021/06 4 summary. He was in the hospital from 12-4-1997 to 23-06-1997 and again he was admitted on 17-09-1997 and was discharged on 22-09-1997. Ext.A5 is the admission and discharge certificate issued from the hospital. Ext.A10 is the disability certificate issued from the Medical Board of the Medical College Hospital, Kottayam showing his disability as 25%. Ext.A11 is the certificate of disability issued by the Medical Board of Medical College Hospital, Thiruvananthapuram showing his metal disability as 35%. The Tribunal took his disability as 50%. This is disputed by the appellant. We also feel the same as excessive. Ext.A10 the certificate issued by the Medical Board of Medical College Hospital, Kottayam shows that claimant has the following disabilities: “Post traumatic sequelac of left fronto temperoparietal massive SDH and Brain oedema resulting in abnormal spastic gait , spastic hemiparesis of left side with difficulty in squatting, sitting cross legged, weak grip and grasp strength of left hand and 60 limitation of abduction of both shoulders.” MACA.No.1021/06 5 9. Ext.A11 the certificate of disability issued by the Medical Board of Medical College Hospital, Thiruvananthapuram shows that the claimant is mentally handicapped on account of acute memory loss and post traumatic head ache. Taking into consideration the above aspect, we feel that his disabilities can be assessed at 35% . The claimant was aged 39 at the time of the accident as Ext.A13 the copy of the third page of SSLC book showed his date of birth as 15/05/1957. Ext.A14 is the copy of SSI registration of Sree Sabari Engineers which was being conducted by the claimant. Ext.A15 is the certificate issued by the Assistant Executive Engineer, Brahmapuram, KSEB showing that claimant had undertaken civil/mechanical work as contractor at the Brahmapuram World Bank Project Circle, Thrissur . On the basis of this, the Tribunal has taken his monthly income as Rs. 5000/- which appears to be reasonable. The Tribunal adopted a multiplier of 16 which is also not seriously disputed. Thus calculated, the claimant is entitled to Rs.3,36,000/- ( 35 % of 5000 x 12 x 16) instead of Rs. 4,80,000/- awarded by the Tribunal for the disability caused. 10. There is another aspect in this case. Tribunal did not award any amount for the loss of amenities and enjoyment of life. Taking into MACA.No.1021/06 6 consideration the disabilities described in Ext.A11 and Ext.A14, we feel that a compensation of Rs. 25,000/- would be reasonable under this count. As regards compensation awarded under other heads, we find it to be reasonable and therefore we are not disturbing the same. 11. Thus calculated, the claimant is entitled to a total compensation of Rs. 6,22,286/- instead of Rs.7,41,286/- awarded by the Tribunal. . He is entitled to interest @ 9% per annum from the date of petition till reaslisation and proportionate cost. The appellant shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The impugned 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.1021/06 7