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 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 MACA.No. 205 of 2005() ---------------------- OPMV.1348/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER IN OP(MV) -------------------------------------------- ABDUL GIFILE, AGED 27 YEARS, S/O. SULAIMAN, VALIYAVEEDU, NEERIKODU P.O., ALANGAD. ADDITIONAL RESPONDENTS 2. ASHIDA, AGED 26 YEARS, VALIYAVEEDU NEERIKODU P.O., ALANGAD 3. ALFEENA FATHIMA (MINOR) AGED 3 ½ YEARS, REP. BY HER MOTHER AND NEXT FRIEND ASHIDA, VALIYAVEEDU NEERIKODU P.O., ALANGAD 4. V.M.SULAIMAN, AGED 63 YEARS, S/O LATE MOOSA VALIYAVEEDU, NEERIKODU P.O. ALANGAD ADDITIONAL APPELLANTS IMPLEADED VIDE ORDER DATED 9/2/11 IN I.A.NO.2748/2009 BY ADV. SMT.M.A.VAHEEDA BABU SRI.JYOTHISH.J.KALLINGAL RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------ 1. VENU S., PILLAVETTIL THEKKETHIL, NEERAVILI PERINAD, KOLLAM. 2. SAINUL ABIDHEEN S/O. BADARUDHEEN, VILAYIL PADINJATTATHIL HOUSE, NEERAVIL, PERINAD, KOLLAM. 3. NATIONAL INSURANCE CO.LTD., DIRECT AGENTS BRANCH, PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM. MACA.NO.205/2005 4. PRAKASH G. S/O. GANGADHARAN PILLAI P.N. VETTINEZHATHU HOUSE, KANNIMEL P.O., MAVELIKKARA. 5. SIRAJUDHEEN S/O. ABDUL AZEEZ, MAMACHAZHIKATTU THEKKATHIL, KUREEPUZHACHERI, THRIKKADAVOOR VILLAGE, KOLLAM. 6. THE ORIENTAL INSURANCE CO.LTD., AMARJYOTHI COMPLEX, KADAPPAKADA, KOLLAM. ADV. SRI.RAJAN P.KALIYATH FOR R3 DR.ELIZABETH VARKEY FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.205 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2011 JUDGMENT Barkath Ali, J. Deceased first appellant was the claimant in O.P.(MV) No.1348/1999 on the file of Motor Accidents Claims Tribunal, Perumbavoor. In this appeal he challenges the judgment and award of the Tribunal dated April 29,2004 awarding a compensation of Rs.3,12,620/- 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 February 14, 1999 at about 3.30 p.m.: Fracture L3 vertibra with paraplegia, fracture pelvis with fracture acetabulam. The ultra sound scan of abdomen showed mild haemoperetoneum and lower anterior abdominal wall contusion. Due to the injury sustained, he has become paraplegic. 2. The accident happened while the deceased claimant was pillion riding on the motor cycle bearing Reg.No.KL-4B-4153 from Kureepuzha-Anchalumoodu public road. When he reached near Aluva Junction, he was knocked down by a car bearing Reg.No.KLU-8659 driven by the second respondent. Alleging negligence against the second respondent, the deceased claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 7,00,000/-. 3. Respondents 1 to 3 are the owner, driver and insurer of the offending car. Respondents 4 to 6 are the owner, rider and insurer of the motor cycle involved in the accident. Respondents 2, 4 and 5 remained absent before the Tribunal. First respondent filed a written statement admitting the accident, but attributed negligence to the fifth respondent. Respondents 3 and 6, the insurers of the vehicles filed written statements admitting the policy of the respective vehicles. 4. Pws 1 to 3 were examined and Exts.A1 to A20 and Exts.X1 and X2 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending car by second respondent and awarded a compensation of Rs. 3,12,620/- with interest @ 9% per annum from the date of petition till realisation against respondents 1 to 3. The deceased claimant/first appellant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. As the first appellant died during the pendency of the appeal, his legal heirs were impleaded as additional appellants 2 to 4 in this appeal. 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 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.3,12,620/-. The break up of the compensation amount awarded is as under: Pain and suffering - Rs.40,000/- Loss of earning - Rs.10,800/- Transportation - Rs. 5,000/- Medical expenses - Rs.81,360/- Extra nourishment - Rs.15,000/- Loss of earning power - Rs.1,10,160/- Loss of amenities - Rs. 35,000/- Future treatment - Rs. 15,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.1,800/- and took the percentage of disability as 30% and adopted a multiplier of 13 and awarded Rs. 1,10,160/- for the disability caused. The claimant was aged 22 at the time of the accident and was a driver by profession. Ext.A18 is the copy of the driving licence. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2,250/-. The multiplier of 17 taken by the Tribunal is not seriously challenged. As regards the disability caused to the claimant, Exts.A20 certificate of disability issued by the Medical Board shows that he has 70% disability. It is supported by Exts.X1 to X3 series case records. Further, now the claimant is dead. His legal heirs are impleaded as additional appellants. Taking into consideration the above aspect, we feel that the percentage of disability can be reasonably fixed at 70% as certified by the Medical Board. Thus calculated for the disability caused, the appellants are entitled to a compensation of Rs. 3,21,300/- ( 70% x 2250 x 12 x 17). Thus on this count, the appellants entitled to an additional compensation of Rs.2,11,140/-. 10. The Tribunal awarded Rs.35,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that an additional compensation of Rs. 50,000/- would be reasonable on this count. 11. As the claimant has become paraplegic, we feel that a compensation of Rs.15,000/- would be reasonable for future treatment expenses till his death. 12. The Tribunal awarded Rs. 10,800/- towards loss of earnings for 6 months @ Rs. 1,800/- per month. As we have fixed the monthly income of the claimant as Rs.2,250/-, he is entitled to a compensation of Rs. 13,500/- towards loss of earnings. Thus on this count, the appellants are entitled to an additional compensation of Rs. 2,700/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 13. In the result, the appellants are found entitled to an additional compensation of Rs.2,43,840/-. They are entitled to interest @ 9% 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 The figure “Rs.2,43,840/-” occurring in the second line in paragraph 13, page 6 of the judgment dated 21/02/2011 is corrected and substituted as “ Rs.2,63,840/-” and the following sentence shall be inserted in between the 2nd and 3rd sentences of paragraph 13 of the judgment. “Out of the compensation amount awarded, 40% shall be disbursed to the second appellant, the wife of the deceased first claimant. The third appellant, minor, is entitled to 50% and the balance 10% shall be disbursed to the fourth appellant, father of the deceased. The share of the minor shall be deposited in a Nationalised Bank in Fixed Deposit till she attains the majority.” as per order dated 29/06/2011 in I.A.1707/2011 in M.A.C.A.205/2005 Sd/- Registrar ( Judicial) sv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - I.A.No.1707 OF 2011 IN M.A.C.A.No.205 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2011 ORDER Barkath Ali, J. Heard. Petition allowed. In the last paragraph of the judgment, the additional compensation to which the appellants are found entitled to is corrected as Rs.2,63,840/-. Out of the compensation amount awarded, 40% shall be disbursed to the second appellant, the wife of the deceased first claimant. The third appellant, minor, is entitled to 50% and the balance 10% shall be disbursed to the fourth appellant, father of the deceased. The share of the minor shall be deposited in a Nationalised Bank in Fixed Deposit till she attains the majority. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv.