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 24TH JUNE 2010 / 3RD ASHADHA 1932 MACA.No. 2411 of 2008(G) ------------------------------------- (O.P(MV).NO.1447/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA) .................... APPELLANT/PETITIONER: ------------------------------------- ABDUL RAZAK, S/O,.KOYAKUTTY, VALIYATHUNDIYIL HOUSE, PANOOR MURI, THRIKKUNNAPUZHA VILLAGE, KARTHIKAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.K.RAVEENDRAN. RESPONDENTS/RESPONDENT: --------------------------------------------- 1. M/S.PATEL ON ROAD COURIERS LTD., 23/334, KOCHAR ROAD, THIRUVANANTHAPURAM. 2. ABDUL KAREEM, S/O.ABOOBACKER, MUKALATHU VEEDU, PALLILAMKARA NORTH PIPELINE, WARD NO. IX, KALAMASSERY MUNCIPALITY, ERNAKULAM DISTRICT. 3. THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, ALAPPUZHA DISTRICT. R3 BY ADV. SRI.V.P.K.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 2411 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P. (MV) No.1447 of 1997 of Addl. Motor Accidents Claims Tribunal, Mavelikara challenges the judgment and award of the Tribunal dated May 22, 2007 awarding a compensation of Rs.1,00,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- On January 8, 1997 at about 3 p.m. the petitioner was riding his motor cycle bearing registration No. KL- 3/8598 along the National Highway 47. When he reached near Kayamkulam, a mini van bearing registration No.KL- 01F/4710, driven by second respondent, came at a high speed and dashed against the motor cycle of the claimant. The claimant sustained serious injuries. According to the MACA 2411/08 2 claimant, the accident occurred due to the rash and negligent driving of the offending mini van by the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending mini van are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.5,00,000/-. 3. First respondent, owner of the offending mini van, filed a written statement, admitting the accident, but contending that the accident occurred due to negligence of the claimant. As the claimant failed to take steps to issue notice to the second respondent, the Tribunal dismissed the O.P. against the second respondent. The 3rd respondent, the insurer of the offending mini van, filed a written statement, admitting the policy. 4. PWs.1 and 2 were examined and Exts.A1 to A21 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the respondents before the Tribunal. The Tribunal, on an appreciation of evidence, found MACA 2411/08 3 that the accident occurred due to the rash and negligent driving of the offending mini van by the second respondent respondent and awarded a compensation of Rs.1,90,000/- with interest @ 7.5 % per annum from the date of petition till realization. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for 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, driver of the offending mini van, 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.A5 copy of the wound certificate, issued from Medical College Hospital, Alappuzha:- 1) Comminuted fracture right femur. MACA 2411/08 4 2) Displaced fracture base of 5th metacarpal, left hand. 3) Fracture bone of 5th metacarpal right. 4) Fracture base of 2nd and 3rd metatarsal right. 5) Deformity (R) femur, M/3rd L 3rd L 3rd junction. 6) Deformity oripitus (L) hand 5th metacarpal. 7) Swelling both knees. 8) Infected LW(L) leg infected (R) leg. 9) Lacerated wound 6 x 2 over left parietal region. 10)Lacerated wound 6 x 3 skin deep on the left leg exposing bone. Ext.A12 certificate of disability showed that the claimant has a permanent disability at 24%. He was laid up in the hospital on different occasions for 117 days in Medical College Hospital, Alappuzha, as evidenced by Ext.A6 series. 8. The Tribunal awarded a total compensation of Rs.1,90,000/-. Break up of the amount awarded is as under :- Transportation expense : Rs. 3,000/- Medical expense : Rs. 76,960/- Bystander's expense : Rs. 5,850/- Extra-nourishment, etc. : Rs. 3,000/- MACA 2411/08 5 Pain and sufferings : Rs. 30,000/- Loss of amenities : Rs. 5,000/- Loss of earning power : Rs. 54,000/- Loss of earning : Rs. 12,000/- -------------------- Total : Rs.1,89,810 Rounded to : Rs.1,90,000/- ======== 9. The learned counsel for appellant sought enhancement of compensation for the disability caused and for the loss of amenities and enjoyment in life. 10. The Tribunal took the monthly income of the claimant as Rs.2,000/-, adopted a multiplier of 15, took the percentage of disability as 15 and awarded Rs.54,000/- for the disability caused. The claimant as PW1 deposed that he was doing copra business. Having regard to the said fact, we feel that his monthly income can reasonably be estimated at Rs.2,500/-. The multiplier of 15 taken by the Tribunal appears reasonable. A copy of Ext.A12 is made available by learned counsel for the claimant for our perusal, which would show the claimant has now the following disabilities:- 1) Left ulnar neuropathy and unable to do fine works with his left hand. MACA 2411/08 6 2) Unstable Rt Knee due to intra-articular fractures and collateral and cruciate ligament injury. 3) 2.5 inch shortening of Rt Lower limb at thigh level. 4) Terminal 30 degree flexion deformity of Rt knee. 5) Flexion deformity of Rt thigh 10 degree. In view of the above said disability suffered by the claimant, we feel that percentage of disability of the claimant can reasonably be fixed at 20%. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.90,000/- (Rs.2,500/- x 12 x 15 x 20/100). Thus, on this count, the claimant is entitled to an additional compensation of Rs.36,000/-. 11. The Tribunal awarded Rs.5,000/- towards the loss of amenities and enjoyment in life, which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.20,000/- would be reasonable for the loss of amenities and MACA 2411/08 7 enjoyment in life. Thus, the claimant is entitled to an additional compensation of Rs.15,000/- on this count. As regards the compensation granted under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs.51,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending mini van, shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn.