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 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 MACA.No. 689 of 2005() ---------------------- OPMV.1880/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/PETITIONER: ----------------------------------- JOSEPH, S/O. RAPPAI, RESIDING AT CHAKKALAKAL HOUSE, THRIKKUR P.O., THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SRI.LEJU T.BALAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. C.R. KUTTAPPAN, RESIDING AT CHIRAYAMEL HOUSE, P.O. VALLACHIRA, THRISSUR DISTRICT. 2. RAJAN, S/O. SANKARANARAYANAN, RESIDING AT PULLIPARAMBIL HOUSE, P.O. KALLUR, THRISSUR DISTRICT. 3. THE UNITED INDIA INSURANCE COMPANY LTD., THRISSUR. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.689 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No. 1880/2000 of Motor Accidents Claims Tribunal, Thrissur challenges the judgment and award of the Tribunal dated August 2, 2004 granting a compensation of Rs. 1,01,400/- for the loss caused to him 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 32 and was a goldsmith according to him. On May 9, 2000 at the about 3 P.M. while the appellant/claimant was pillion riding on the motor cycle bearing Reg.No. KL8/L 6211 along Muttithady-Thrikkur road and reached at Muttithady, a tempo van bearing Reg.No.KL 10/9864 came at a high speed from the opposite direction and dashed against the motor cycle of claimant. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the tempo van by its MACA.No.689/2005 Page numbers driver, the second respondent and respondents 1 to 3, the owner, driver and insurer of the offending tempo van are jointly and severally liable to pay compensation to the claimant. He claimed a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending tempo van filed a joint written statement before the Tribunal contending that the accident occurred due to the negligence on the part of the claimant. The third respondent the insurer of the offending tempo van filed a written statement admitting the policy of the van. 4. PW1 was examined and Exts.A1 to A13 were marked on the side of the claimant before the Tribunal. Ext.B1 the copy of the policy was marked on the side of the Insurance company. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 1,01,000/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. 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 for consideration is whether the claimant is entitled to any MACA.No.689/2005 Page numbers enhanced compensation ? 6. The claimant sustained the following injuries : 1) Fracture of right femur. 2) Lacerated wound 5 X 2 .5 c.m. on the right ankle 3) Abrasion on right big toe, left forehead and below left eye brow. 7. Ext.A2 is the wound certificate issued from the hospital. As PW1 he would say that he was unable to attend his work for 1 ½ years and that there is difficulty in walking and climbing steps and for squatting and that there is shortening of his right leg. Ext.A6 is the discharge summary issued from Aswini hospital, Thrissur which shows that he was in the hospital from 9/5/2000 to 25/5/2000. Ext.A7 is the Medical Certificate issued from the hospital. Ext.A8 series are prescriptions. Ext.A9 is the inpatient card. Ext.A10 is the disability certificate issued by the Assistant Professor of Orthopedics, Medical College Hospital, Thrissur wherein it is certified that the claimant has 12% disability. 8. The Tribunal awarded compensation as follows : Loss of earnings for 4 months at the rate of Rs. 2000/- per month -Rs. 8000/- MACA.No.689/2005 Page numbers Medical expenses, extra nourishment and bystander's expenses - Rs. 36,000/- Pain and suffering -Rs.15,000/- Loss of amenities and enjoyment of life -Rs 12,000/- Permanent disability - Rs.20,400/- Loss of earning power -Rs. 10,000/- --------------- Rs. 1,01,400/- ========== 9. The counsel for appellant mainly disputed the quantum of compensation awarded for the disability caused. The Tribunal took the monthly income of claimant as Rs. 2000/- and assessed the disability at 5%. Ext.A2, the date of birth certificate, shows his date of birth as 3/5/2976. Therefore the Tribunal took his age as 24 at the time of accident and adopted a multiplier of 17 and awarded Rs. 20,400/- for the disability caused ( 2000 x 12x 17 x 5%). The counsel for appellant argued that as PW1 is a goldsmith , his monthly income should be taken as at least Rs. 4000/-. He further submitted that the Tribunal went wrong in assessing his percentage of disability as 5% as in Ext.A12 the doctor has found disability as 12%. There is force in the above contention. A copy of Ext.A12 is produced by the counsel for the appellant which shows that the appellant has the following MACA.No.689/2005 Page numbers difficulties. 1) Malunited fracture of the shaft of right femur with nail in site with 10 outward bowing at the fracture site 2) Shortening right lower limb 1 cm. 3) Due to shortening and malunited fracture femur he has got limping right lower limb along with pain in the thigh 4) Traumatic secondary osteoarthritis of the knee causing partial ankylosis of the right knee causing him difficulty to squat, difficulty to sit cross leg and difficulty to climb stairs. 5) Pain in the right hip due to traumatic osteoarthritis of the hip on right side. 6) Hypertrophied scar right hip area and thigh causing disfigurement to the thigh and the scar is itchy in nature. 10. Taking into consideration the above difficulties felt by the appellant, we are of the view that his percentage of disability can be assessed at 8%. As PW1 has testified that he was a goldsmith at the time of accident , his monthly income can be fixed at Rs. 2500/-. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 40,800/- ( 8% x 2500 x 12 x 17). Thus on this MACA.No.689/2005 Page numbers count, the claimant is entitled to an additional compensation of Rs. 20,400/-. The compensation awarded by the Tribunal under other heads appears to be reasonable which is not disputed before us. 11. Thus, the claimant is entitled to an additional compensation of Rs. 20,400/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation . The Tribunal awarded interest only at the rate of 6% per annum which appears to be very low. Therefore, for the compensation already awarded, the claimant is entitled to interest @ 9% per annum from the date of petition till realisation. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal with proper notice to the claimant within two months from the date of receipt of a copy of this judgment. The impugned award of the Tribunal is modified to that extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.689/2005 Page numbers