IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 MACA.No. 25 of 2006() --------------------- OPMV.1031/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER ---------------------------------- JIJO, S/O.GEORGE, NELLISSERY KALATHPARAMBIL HOUSE, VELLANGALLOORE.P.O, MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS --------------- 1. P.K.VARGHESE, PLAKKAL HOUSE, MALA PALLIPPURAM.P.O. 2. MANAGER, ORIENTAL INSURANCE CO. LTD., NORTH NADA, KODUNGALLOORE. 3. A.J.PAUL, AMBOOKKAN HOUSE, KUZHIKKATTUSSERY. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 SRI.P.T.JUDY FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 25 of 2006 ------------------------------------------------------ Dated: MAY 17, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1031/1999 of the Motor Accidents Claims Tribunal, Irinjalakuda, challenges the judgment and award of the Tribunal dated May 20, 2005 awarding a compensation of Rs.2,01,355/- with interest at 6% per annum from the date of petition till realisation for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 23 at the time of the accident and used to earn Rs.4500/- per month from his employment in a sawmill. On September 27, 1998 the claimant was riding his motorcycle bearing registration No.KER 2512 along Mala - Ashtamichira public road. At that time another motorcycle bearing registration No. KRH 4286 ridden by the 1st respondent came at a high speed and dashed against the motorcycle of the claimant. The claimant sustained serious injuries. According to the claimant the accident occurred due to the rash and negligent riding of the offending motorcycle bearing registration No. KRH 4286 by the 1st respondent. The 1st respondent M.A.C.A. 25 of 2006 2 as the rider, the 2nd respondent as the insurer and the 3rd respondent as the R.C. owner of the offending motorcycle are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.5 lakhs. 3. Respondent No. 1, the rider of the offending motorcycle remained absent and was set ex parte by the Tribunal. The 2nd respondent, insurer of the offending motorcycle filed a written statement admitting the policy and further contending that there was negligence on the part of the claimant also. The 3rd respondent in his written statement denied his liability. 4. PWs.1 to 3 were examined and Exts.A1 to A14 were marked on the side of the claimant before the Tribunal. On the side of the contesting 2nd respondent Ext.B1 copy of the policy was marked. On an appreciation of evidence the Tribunal awarded a compensation of Rs.2,01,355/-. 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 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 1st M.A.C.A. 25 of 2006 3 respondent, rider of the motorcycle bearing registration No. KRH 4286 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 claimant sustained the following injuries as revealed from Ext.A6, copy of the wound certificate, issued from the Medical College Hospital, Thrissur and Ext.A7 discharge summary issued from the Medical Trust Hospital, Ernakulam. “Right eye ball ruptured is prolapse, Lacerated wound over root of nose with fracture, multiple wound over the nose, depressed fracture right side of maxilla contusion maxillo facial injury, loss of 7 teeth, midplate split, lacerated wound left knee. C.T. scan report shows pneunocephalus with brain swelling, bilateral blow out fracture orbits with injury to right globe, dental le fort fracture III B/L, right blow out fracture orbital floor, fracture mandible symphasis etc.” Ext.A8 scan report shows that the petitioner sustained pneumocephalus with brain swelling, bilateral blow out fracture orbits with injury to right globe and other fractures including anterior cranial fossa. Ext.A13 certificate of disability shows that his right eye ball was ruptured and replaced and has lost sight of his right eye and has suffered a permanent disability of 40%. 8. The Tribunal awarded a total compensation of Rs.2,01,355/-. M.A.C.A. 25 of 2006 4 The break up of the compensation awarded is as under:- Extra nourishment and wages to attendants - Rs.2,200/- transportation to hospital - 300/- Medical expenses - 56,445/- Loss of earning for 3 months @ Rs.1500/- p.m. - 4,500/- Compensation for pain and suffering - 7,500/- Loss of amenities and happiness in life - 5,000/- Compensation for permanent disability - 1,22,400/- (Rs.1500/- x 12 x 40% x 17) Disfiguration - Rs.3000/- 9. The Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused, pain and suffering, loss of amenities/enjoyment of life and for pain and suffering. The Tribunal took the monthly income of the claimant as Rs.1500/-, adopted a multiplier of 17 and took the percentage of disability as 40% as shown in Ext.A13 and awarded Rs.1,22,400/- for the disability caused. The claimant produced Ext.A14 salary certificate issued by PW.3. It shows that he was employed in a sawmill and used to earn Rs.4500/- per month. The Tribunal rejected the evidence of PW.3 for obvious reasons. But, taking into consideration the above fact and that he was aged only 23, we feel that his monthly income can be reasonably fixed at Rs.3000/-. The percentage of disability as M.A.C.A. 25 of 2006 5 well as the multiplier adopted is not seriously challenged. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.2,44,480/-. Thus on this count the claimant is entitled to an additional compensation of Rs.1,22,480/-. 10. For the pain and suffering endured, the Tribunal awarded a compensation of Rs.7500/- which appears to be very low. Therefore the pain and suffering endured, we feel that a compensation of Rs.15,000/- would be adequate on this count. 11. For the loss of amenities/enjoyment of life, the Tribunal awarded a compensation of Rs.5000/-. As the claimant has lost his right eye, we feel that a compensation of Rs.10,000/- would be reasonable on this count. 12. For the disfigurement caused, the Tribunal awarded Rs.3000/-. As the claimant has lost his right eye, we feel that a compensation of Rs.15,000/- would be adequate. 13. There is another aspect. Towards loss of earnings, the Tribunal awarded a compensation of Rs.4500/- i.e. for three months at the rate of Rs.1500/- per month. We have fixed the monthly income of the claimant as Rs.3000/-. Therefore towards loss of earnings, he is entitled to a compensation of Rs.9000/-, i.e. an additional compensation of Rs.4500/-. M.A.C.A. 25 of 2006 6 14. Thus the claimant is entitled to an additional compensation of Rs.1,51,480/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 2nd 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 mt/-