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 7TH JUNE 2010 / 17TH JYAISTHA 1932 MACA.No. 803 of 2003() ----------------------------------- OPMV.279/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER IN OP(MV) ------------------------------------------------------ PEETHAMBARAN, S/O. RAVUNNI, KUNDINI HOUSE, MATTATHUR PO., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY, SRI.A.N.SANTHOSH. RESPONDENTS/RESPONDENTS IN OP(MV) --------------------------------------------------------------- 1. T.A. ANANDAKUMAR, S/O. T.S. ANANDARAJAN, THUNDATHIL HOUSE, CHERUTHONI, IDUKKI. 2. RAJAN, S/O. MATHEW, THOTTIYAN HOUSE, KODALY, CHELAKATTUKARA, MATTATHUR VILLAGE. 3. NATIONAL INSURANCE COMPANY, AJAY VIHAR, M.G.ROAD, KOCHI-16. R3 BY ADV. SRI.LAL GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 803 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 7th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.279 of 1995 of the Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated April 30, 2003, awarding a compensation of Rs.65,000/- for the loss caused to the claimant, on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- On May 8, 1994 at about 3 a.m. the claimant was traveling in his Maruthi Van bearing registration No. KL- 8/8313 along the National Highway 47. When he reached near Desom a lorry bearing registration No.KER 3792, driven by the second respondent, came at a high speed and collided head on with the Maruthi Van of the claimant. The claimant sustained serious injuries. According to the MACA 803/2003 2 claimant, the accident occurred due to the negligence of the second respondent. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severely liable to pay the compensation to the claimant. 3. Respondents 1 and 2, filed written statement, admitting the accident, but contending that the accident occurred due to negligence of the claimant. The third respondent, insurer of the offending lorry, filed written statement admitting the policy. 4. PWs.1 and 2 were examined and Exts. A1 to A15 were marked on the side of the claimant. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence of the second respondent and awarded a compensation of Rs.65,000/- with interest at the rate of 9% p.a. from the date of petition till realization and proportionate costs. The claimant has come up in appeal, challenging the quantum of compensation awarded MACA 803/2003 3 by the Tribunal. 5. Heard the learned counsel for the claimant and learned 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, driver of the offending lorry, is not seriously challenged in this appeal. Therefore, the only question for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries:- “1) Fracture left collar bone. 2) Fracture 2, 3, 4 and 5 ribs left side. 3) Fracture 2, 3, 4 and 5 ribs right side. 4) Lacerated wound left knee. 5) Lacerated wound right arm. 6) Sutured wound over the chin. 7) Multiple abrasions left leg. 8) Lower motor neuron type of facial nerve paralysis left side. MACA 803/2003 4 The doctor who issued Ext.A1 disability certificate was examined as PW1. He found thus:- “mal united fracture of the left clavicle with 15 degree angulation and torsion at the fracture site. There was stiffness and pain to the left shoulder. Ribs fractures to both sides of chest caused breathing difficulty, chronic chest pain and cough. Due to the facial nerve paralysis he has difficulty to close the left eye and has watering from the left eye. Disability has caused disfigurement to the face.” He has assessed the percentage of disability as 25%. Claimant was aged 49 at the time of the accident and used to earn Rs.5,000/- per month from his business, according to the claimant. 8. The Tribunal awarded a total compensation of Rs.65,000/-. Break up of the compensation awarded is as under:- Loss of earning : Rs. 6,000/- Transportation : Rs. 1,500/- Medical expenses : Rs.10,600/- MACA 803/2003 5 By-stander’s expenses : Rs. 400/- Loss of earning power : Rs.23,400/- Pain and suffering : Rs. 8,000/- Loss of amenities : Rs. 6,000/- discomforts suffered and inconvenience caused. Permanent disfiguration : Rs. 9,100/- and permanent disability. ------------------ Total : Rs.65,000/- ======= 9. The learned counsel for the appellant has mainly sought enhancement of compensation awarded for disability caused, pain and suffering and loss of amenities and enjoyment in life. The Tribunal took monthly income of the claimant as Rs.1,000/-, took disability as 15%, adopted a multiplier of 13 and awarded a compensation of Rs.23,400/- for the disability caused. The claimant produced Exts.A11 and A12 before the Tribunal to show that he was conducting some business. Ext.A11 is the certificate issued from the Secretary, Kodakara Grama Panchayat, certifying that the claimant was conducting business of M/s K.R. Metals. Ext.A12 is the certificate issued by the Salestax Officer, Chalakudy certifying that the claimant was the proprietor MACA 803/2003 6 of M/s.Keyar Metals and that he has closed the business. Therefore, we feel that the monthly income of the claimant can be easily be fixed at Rs.2,500/-. 10. Though PW1 has certified that the claimant has suffered permanent disability of 25%, the Tribunal took the percentage of disability only 15%. The Tribunal did not assign any reason for reducing the percentage of disability from 25% assessed by PW1. Taking into consideration the disability mentioned in Ext.A1, we feel that percentage of disability suffered by the claimant can be estimated at 20%. The multiplier adopted by the Tribunal is not challenged. Thus for the disability caused the claimant is entitled to a compensation of Rs.78,000/- (Rs.2,500/- x 12 x 13 x 20%). Therefore, on this count, the claimant is entitled to an additional compensation of Rs.54,600/-. 11. The Tribunal awarded a compensation of Rs.8,000/- for pain and suffering endured by the claimant, which appears to be very low. Taking into consideration the nature of the injuries sustained, a compensation of MACA 803/2003 7 Rs.15,000/- would be reasonable on this count. Thus, the claimant is entitled to an additional compensation of Rs.7,000/- on this count. 12. The Tribunal awarded Rs.6,000/- for loss of amenities and enjoyment in life, which appears to be inadequate. Having regard to the disabilities caused to the claimant, we feel that a compensation of Rs.10,000/- would be reasonable for the loss of amenities and enjoyment in life. Therefore, on this count, the claimant is entitled to an additional compensation of Rs.4,000/-. 13. There is another aspect in this case. The Tribunal awarded a compensation of Rs.6,000/- towards the loss of earnings @ Rs.1,000/- per month. As we have assessed the monthly income of the claimant as Rs.2,500/-, he is entitled to a compensation of Rs.15,000/- for the loss of earnings. Thus, the claimant is entitled to an additional compensation Rs.9,000/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. MACA 803/2003 8 14 In the result, the claimant is entitled to an additional compensation of Rs.74,600/-. He is entitled to interest @ 9% from the date of petition till realization and proportionate costs. The third respondent, being the insurer of the offending lorry, shall deposit the amount 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