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 4TH AUGUST 2010 / 13TH SRAVANA 1932 MACA.No. 653 of 2003(C) ---------------------- OPMV.223/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT : CLAIMANT -------------- PRAKASH J., S/O. JOSEPH, HOUSE NO.VI-12/319, PALACHALKONAM, KATTACHALKUZHI P.O., (Via) BALARAMAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENT(S): RESPONDENTS --------------- 1. S.SUNILKUMAR, T.C.13/155, KOCHUMADAVILAKOM, NALUMUKKU, PETTA P.O., THIRUVANANTHAPURAM. 2. JAYACHANDRAKUMAR, CHATHRAMMODA HOUSE, KANJIRAMPARA, THIRUVANANTHAPURAM. 3. M/S. ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, THAKARAPARAMBU JUNCTION, PAZHAVANGADI, THIRUVANANTHAPURAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010 ALONG WITH MACA NO. 703 OF 2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 653 & 703 of 2003 ------------------------------------------------------ Dated: AUGUST 4, 2010 JUDGMENT Barkath Ali, J. Both these appeals arise out of the common award dated March 17, 2002 passed by the Motor Accidents Claims Tribunal, Neyyattinkara in OP(MV) 223/1999 and 177/1999. The appellants, father and daughter, are the claimants in the above OPs. They have filed the OPs. under Sec.166 of the Motor Vehicles Act claiming compensation for the loss caused to them on account of the injuries sustained by them in a motor accident which occurred on January 23, 1999. 2. While they were travelling in an autorickshaw bearing registration No.KCT-7662 along Vizhinjam - Balaramapuram public road, it capsized due to the negligence of the driver of the autorickshaw, the 2nd respondent. They sustained serious injuries. Alleging negligence against the 2nd respondent, they filed the OPs. before the Tribunal claiming compensation under Sec.166 of the Motor Vehicles Act. The claimant in OP(MV) 223/1999 the father claimed a compensation of Rs.3 lakhs while the claimant in OP(MV) 177/1999, the daughter claimed a compensation of Rs.50,000/-. M.A.C.A. 653 & 703 of 2003 2 3. Respondents 1 and 2, the owner and the driver of the offending autorickshaw, remained absent before the Tribunal. The 3rd respondent, the alleged insurer of the offending autorickshaw, filed a written statement denying the policy and further contending that the vehicle insured with the 3rd respondent is KCT 7962. 4. Both these OPs were jointly tried along with another OP filed by another injured person in the accident and a common award was passed. PW.1 was examined and Exts.A1 to A18 were marked on the side of the claimants. On the side of the contesting 3rd respondent RW.1 was examined and Exts.B1 and B2 were marked. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the 2nd respondent, driver of the offending autorickshaw, and that the said autorickshaw was not insured with the 3rd respondent during the relevant time and awarded a compensation of Rs.80,450/- in OP(MV) 223/1999 and a compensation of Rs.15,000/- in OP(MV) 177/1999 against respondents 1 and 2 with interest @ 9% per annum from the date of petition till realisation. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard counsel for the appellants/claimants and that of 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 2nd M.A.C.A. 653 & 703 of 2003 3 respondent is not challenged in these appeals. Therefore the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 7. The claimant in OP(MV) 223/1999, who is the appellant in MACA 653/2003, sustained the following injuries in the accident: “lacerated multiple wounds around (R) knee, a cut wound on the dorsum of (L) foot, lacerated wound 1 x 0.5 cm medial malleolus (R) and typed III compound comminuted fracture both bones (R) leg.” 8. The Tribunal awarded a total compensation of Rs.80,450/- in this OP. The break up of the compensation awarded is as under: pain and suffering Rs.12,000/- loss of earnings 6,000/- transportation 1,000/- damage to clothings 500/- treatment expenses 7,750/- bystander's expenses 2,000/- permanent disability 43,200/- loss of amenities etc. 8,000/- 9. Counsel for the claimant sought enhancement of the compensation for the disability caused, pain and suffering endured and on other heads. The Tribunal took the monthly income of the claimant as Rs.2000/- and took the percentage of disability as 10% and adopting a multiplier of 18 awarded Rs.43,200/- towards the disability caused. The claimant was aged 29 at the time of the accident and he was working in Lekshmi Saw Mills earning Rs.5000/- M.A.C.A. 653 & 703 of 2003 4 per month according to him. As no documents were produced to prove the above aspect, the Tribunal is perfectly justified in taking his monthly income as Rs.2000/- and adopting a multiplier of 18. But Ext.A10 certificate of disability issued by Dr.Muhammed Nazeer of the Medical College Hospital, Thiruvananthapuram shows that the claimant has a disability of 15%. Taking into account the nature of the disability mentioned in that certificate, we feel that the percentage of disability shown in Ext.A10 can be accepted. Thus calculated, for the disability caused, the claimant is entitled to a compensation of Rs.64,800/-. Therefore on this count the claimant is entitled to an additional compensation of Rs.21,600/-. 10. For the pain and suffering endured, the Tribunal awarded a compensation of Rs.12,000/-. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.15,000/- would be reasonable. Therefore on this count the claimant is entitled to an additional compensation of Rs.3000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. Thus the claimant in OP(MV) 223/1999 is found entitled to an additional compensation of Rs.24,600/- 11. The claimant in OP(MV) 177/1999, who is the appellant in MACA 703/2003, is a girl aged 8 at the time of the accident. She sustained the following injuries in the accident: M.A.C.A. 653 & 703 of 2003 5 “Lacerated injury on the pinna of (R) ear, lacerated injury of scalp (R) side behind the (R) ear about 3 inches long bone deep, lacerated wound on the posterior aspect of (R) ear 3x2x1 cm., lacerated wound over (R) parietal region 6x3x1 cm., lacerated wound over (L) forehead 3x1x0.5 cm., lacerated wound over (R) shoulder 2x1 cm. and multiple abrasions on both knees.” 12. The Tribunal awarded a total compensation of Rs.15,000/- in this OP. The break up of the compensation awarded is as under: pain and suffering Rs.7,500/- transportation 1,000/- damage to clothings 500/- treatment expenses 1,000/- discomfort and inconvenience 5,000/- 13. The Tribunal awarded a compensation of Rs.5000/- for the discomfort and inconvenience caused. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.10,000/- would be reasonable under this head. Therefore on this count the claimant is entitled to an additional compensation of Rs.5000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. Thus the claimant in OP(MV) 177/1999 is found entitled to an additional compensation of Rs.5000/-. 14. In the result, the appellants/claimants in both these appeals are found entitled to an additional compensation of Rs.24,600/- and Rs.5,000/- respectively. They are entitled to interest at the rate of 9% per annum from the date of petition till realisation M.A.C.A. 653 & 703 of 2003 6 and proportionate costs. The appeals are disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-