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 1ST MARCH 2011 / 10TH PHALGUNA 1932 MACA.No. 929 of 2009() ---------------------- OPMV.3147/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER ------------------------ P.M.SALIM, AGED 40 YEARS, S/O. MOIDEEN, PARAKKAL PUTHENVEEDU HOUSE, NOW RESIDING AT XV/319, KUTTATH HOUSE, AKKARAPARAMBU, KOORKENCHERY THRISSUR DIST. BY ADV. SMT.M.SINDHU THANKAM SMT.O.H.NAZEEBA RESPONDENTS/RESPONDENTS : --------------- 1. SRI. RAJARAJESWARI ENTERPRISES, 29, THALAVARI STREET, WEST MAMPALAM,CHENNAI, THAMILNADU. ( DELETED) 2. T.MOHANAN, S/O. THANGA RAJ, MANIMEKALAI AUTO DEISEL WORKS, ULUNDURPET, SALEM DIST. TAMILNADU. ( DELETED) 3. THE NEW INDIA ASSURANCE CO. LTD., EAST COST CHAMBERS, FIRST FLOOR, 92, G.N.CHETTY ROAD,I NAGAR, CHENNAI-600017. RESPONDENTS 1 AND 2 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 22/2/11 ON I.A.NO. 500/2011. ADV. SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.929 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.3147/2002 on the file of Motor Accidents Claims Tribunal, Thrissur. In this appeal he challenges the judgment and award of the Tribunal dated November 6, 2008 awarding a compensation of Rs.1,45,990/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on June 18, 2002 at about 9 a.m. : Segmental fracture right femur, fracture shaft of right humerus, Grade III wound upper 3rd of right leg with fracture right fibula, lacerated injury right leg, anterior lateral aspect extending from tibial tuberosity upto 10 cm. distally crushed. 2. The accident happened while the claimant was driving the autorickshaw along Thrissur-Palakkad National Highway. When he reached near Alathur, the autorickshaw collided head on with a lorry MACA.No.929/2009 2 bearing Reg.No.TN 09/R 1388 driven by the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,29,000/-. 3. Respondent No.1, the owner of the offending lorry remained absent before the Tribunal. No relief was sought against the second respondent. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy. 4. PW1 was examined and Exts.A1 to A8 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent and awarded a compensation of Rs. 1,45,990/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the MACA.No.929/2009 3 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 Tribunal awarded a total compensation of Rs.1,45,990/-. The break up of the compensation amount awarded is as under: Loss of earning - Rs.12,000/- Transportation - Rs. 1,000/- Extra nourishment - Rs. 2,000/- Damage to clothing - Rs. 500/- Expenses for treatment - Rs. 68,350/- Bystander expenses - Rs. 1,500/- Pain and suffering - Rs. 20,000/- Loss of amenities - Rs. 8,000/- Disability - Rs. 32,640/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as MACA.No.929/2009 4 Rs.2,000/- and took the percentage of disability as 8% and adopted a multiplier of 17 as the claimant was aged 33 at the time of the accident and awarded Rs. 32,640/- for the disability caused. According to the claimant, he was a driver earning Rs.4,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. The percentage of disability taken by the Tribunal as 8% appears reasonable, though in Ext.A7 the doctor has assessed his disability at 14%. The multiplier of 17 taken by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 48,960/- ( 8% x 3000 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.16,320/-. 10. The Tribunal awarded Rs.8,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 11. There is another aspect in this case. The Tribunal awarded Rs. 12,000/- towards loss of earnings for 6 months @ Rs. 2,000/- per MACA.No.929/2009 5 month. As we have fixed the monthly income of the claimant as Rs. 3,000/-, he is entitled to a compensation of Rs. 18,000/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 6,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 29,320/-. He is entitled to interest @ 7% 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.929/2009 6 MACA.No.929/2009 7