IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 MACA.No. 775 of 2004() ---------------------- OPMV.1135/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER: ------------------------------------------------------------ JANCYMOL AUGUSTINE, W/O.AUGUSTINE, AGED 33 YEARS, KARUVAPPARAMBIL HOUSE, NEAR KURCHI VILLAGE OFFICE, KURICHI KARA, KURICHI VILLAGE. BY ADV. SRI.K.A.HASHIM RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. SUNILKUMAR, S/O. GOPALAN, (DRIVER OF KL-5/F-14, PARAPPARAMBIL HOUSE, PATHAMUTTOM KARA, PANACHIKKADU VILLAGE. 2. P.S. KURIAKOSE, KUMBADIL HOUSE, PATHAMUTTOM, PANACHIKKADU VILLAGE, KOTTAYAM. 3. THE ORIENTAL INSURANCE COMPANY LTD., KOTTAYAM. 4. REJI A.V., S/O. VASAPPAN, KAVILKIZHAKKETHIL HOUSE, NEELAMPEROOR, KURCHI. 5. NATIONAL INSURANCE COMPANY LTD., BRANCH CHANGANACHERRY. ADV. SRI.M.A.GEORGE FOR R5 SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. --------------------------------------------------- M.A.C.A No. 775 OF 2004 ----------------------------------- DATED THIS THE 29TH DAY OF JULY, 2010 J U D G M E N T Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV)No.1135/2000 on the file of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated January 31, 2004 awarding a compensation of Rs. 40,250/- for the loss caused to the claimant on account of the injuries sustained by her in a motor accident. 2. The facts leading to this appeal in brief are these: Appellant/claimant was a teacher in an L.P School and was aged 30 at the time of accident. She sustained the following injuries in a motor accident that occurred on April 4, 2000 at about 4 p.m. at Chingavanam. (i)Fracture parasymphysis (ii)Fracture middle third of clavicle (iii)Lacerated injuries on the forehead upper lip (iv)Contusion heamatoma on the right cheek. M.A.C.A No. 775 OF 2004 2 3. The accident happened while the claimant and two others were travelling in an autorickshaw bearing registration No. KL5 P-4397 driven by one Aji, It collided head on with a bus bearing registration No. KL5 F-1476 driven by the first respondent. The claimant and her daughter aged 5 sustained injuries and the driver of the autorickshaw died in the accident. The claimant filed an O.P. under Section 166 of the Motor Vehicles Act alleging negligence against 1st respondent, the driver of the bus claiming a compensation of Rs. 3 lakhs under various heads. 4. Respondents 1 and 2, the driver and owner of the offending bus remained absent and were set ex-parte by the Tribunal. The 3rd respondent, the insurer of the offending bus filed a written statement admitting the policy and further contended that there was also negligence on the part of the driver of the autorickshaw. The owner and insurer of the autorickshaw were made formal parties in the O.P. as respondents 4 and 5 respectively. M.A.C.A No. 775 OF 2004 3 5. This O.P was tried jointly along with two other O.Ps filed by another injured person and the legal heirs of the deceased. Ext.A1 to A46 were marked on the side of claimants. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 40,250/- with interest at the rate of 6% per annum from the date of petition till realization and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellant/claimant and the counsel for the Insurance company. 7. 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, the driver of the offending bus is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation? M.A.C.A No. 775 OF 2004 4 8. The Tribunal awarded a total compensation of Rs. 43,250/- (mistakenly shown as Rs. 40,250/- in the award). The break up of the compensation is as under: Loss of earnings : 4,500 Treatment expenses : 6,250 Bystander expenses : 1,000 Transportation : 1,500 Pain and sufferings :15,000 Loss of amenities :15,000 9. The counsel for the claimant argued that no compensation was awarded for the disability caused as the claimant sustained 10% orthopaedic disability as evidenced by Ext.A38, the certificate issued from the Orthopaedics Department of the Medical College Hospital and also 9% disability as certified by the doctor of Maxilo facial surgery Department as evidenced by Ext.A37. There is force in the above contention raised by the counsel for the appellant. In the light of certificates A38 and A37, we feel that the claimant is entitled to compensation for the disability caused. Taking into account the nature disabilities suffered by her, we feel that percentage of disability can be fixed at M.A.C.A No. 775 OF 2004 5 7%. Ext.A44, the certificate issued by the Headmistress of school shows that the claimant was working as a teacher in the L.P School on a salary of Rs. 5334/-. Therefore, we feel that her income can be reasonably fixed at Rs. 4,000/-. As the claimant was aged 30 at the time of accident, the multiplier of 18 would be reasonable in this case. Thus, for the permanent disability caused, the claimant is entitled to a compensation of Rs. 60,480/- (7%x 4000 x 12 x 18). 10. The Tribunal awarded a compensation of Rs. 4,500/- towards loss of earnings for 50 days in view of the commuted leave availed by the claimant for those days. We have fixed the monthly income of the claimant as Rs. 4,000/-. Taking into account the nature of injury sustained by the claimant, we feel that a compensation of Rs.8,000/- towards loss of earnings for two months would be reasonable. Thus, the claimant is entitled to an additional compensation of Rs. 3,500/- on this count. M.A.C.A No. 775 OF 2004 6 11. As regards, the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. The Tribunal in the award has shown the total amount awarded as Rs. 40,250/-, but actually the total compensation comes to Rs. 43,250/-. Therefore the total compensation mentioned in the impugned award is corrected as Rs. 43,250/-. 12. In the result, the claimant is found entitled to an enhanced compensation of Rs. 63,980/-. The Tribunal awarded interest only at the rate of 6% per annum which appears to be very low. The claimant is entitled to interest at the rate of 7.5% per annum from the date of petition till realization for the compensation already awarded and for the enhanced compensation and proportionate cost. The 3rd respondent, being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment before the Tribunal with notice to the claimant. The award of the Tribunal is modified M.A.C.A No. 775 OF 2004 7 to the above extent. The appeal is disposed of as found above. A.K. BASHEER Judge P.Q. BARKATH ALI Judge PKK