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 17TH MARCH 2010 / 26TH PHALGUNA 1931 MACA.No. 1345 of 2005() ------------------------------------ OPMV.1984/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER. ------------------------------------- MAHESWARAN, S/O.KUMARAN, CHEERAKAYATHUPUTHENPURA, KEEZHETHUKUZHY HOUSE, NECHOOR P.O. MANEED. BY ADV. SRI.PAULSON C.VARGHESE RESPONDENTS/RESPONDENTS. ------------------------------------------------ 1. V.N. GOPALAKRISHNAN, URATHU HOUSE, KALAMPOOR, P.O.PIRAVOM. 2. BENNY, S/O.VARKEY, VADAKKEKKARAYIL HOUSE, PAZHOOR P.O., PIRAVOM. 3. THE NATIONAL INSURANCE CO. LTD., KALAMASSERY. R3 BY ADV. SMT.SARAH SALVY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= M.A.C.A. No. 1345 of 2005 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= Dated this the 17th day of March, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.1984 of 2001 of the Motor Accidents Claims Tribunal, Muvattupuzha challenges the judgment and award of the Tribunal dated January 29, 2005 awarding a compensation of Rs. 37,000/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these:- The claimant was aged 34 at the time of the accident and as a Mason used to earn Rs.6,000/- per month, according to him. On October 8, 2001 at 5.30 p.m. while he was walking along the side of the Mulloorpadykalamboor MACA 1345/05 2 Kavu public road, an auto-rickshaw bearing registration No.KL-7/AB 2374, driven by the second respondent, came at a high speed and knocked him down. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the second respondent. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending vehicle are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.3,50,000/-. 3. Respondents 1 and 2, owner and driver of the offending auto-rickshaw, remained absent and were set ex parte by the Tribunal. The third respondent Insurance Company field a written statement, admitting the policy. 4. Exts.A1 to A9 were marked on the side of the claimant. The treatment record of the claimant was marked as Ext.X1. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.37,000/- with MACA 1345/05 3 interest at the rate of 6% p.a. 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 learned counsel for the appellant and learned counsel for third respondent, 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.37,000/-. The break up of the compensation awarded is as under:- Loss of earning : Rs.3, 000/- Transport to hospital : Rs.1, 500/- Extra nourishment : Rs.1, 000/- Attendant expenses : Rs.1, 500/- Damage to clothing : Rs.500/- Expenses for treatment : Rs.8,000/- Future treatment expenses : Rs.3,000/- MACA 1345/05 4 Disfigurement caused : Rs.3,500/- Pain and suffering : Rs.12,000/- Loss of amenities and : Rs.3,000/- enjoyment of life. ----------------- Total : Rs.37,000/- ======== 8. The claimant sustained the following injuries:- 1) Fracture of mandible right. 2) Parasymphysis with fracture of lower right canine tooth. Ext. A5 is a copy of the accident register-cum-wound certificate. Ext.A6 is a copy of treatment certificate issued from Medical College hospital and Ext.X1 is treatment record from the Government Hospital, Peruva. It is seen from Ext.X1 that the patient developed respiratory obstruction and ETT was inserted and airway maintained. The fracture of mandible was stabilized with wires. He has continuous bleeding from nose and throat. Tracheostomy and exploration of oropharynx were done under general anesthesia. Clots found in the larynx were removed. He was in the hospital from 8-10-2001 to 27-10-2001. MACA 1345/05 5 9. The learned counsel for the appellant has sought enhancement of compensation awarded for pain and suffering and loss of amenities in life. He has also pointed out that no compensation was awarded for the disability caused. There is force in the above contention. The Tribunal took the monthly income of the claimant as Rs.1,500/-. According to the claimant, he was working as a Mason and was earning Rs.6,000/- per month. Being a Mason, we feel that his monthly income can be fixed at Rs.2,500/-. No document is produced by the claimant to show that he has suffered any permanent disability due to the injury sustained. But, the nature of the injuries sustained by him, as mentioned above, and treatment he has undergone show that he must have suffered some disability, for which we feel that a compensation of Rs.20,000/- will be reasonable. 10. For pain and suffering Rs.12,000/- and for loss of amenities and enjoyment in life Rs.3,000/- were awarded by the Tribunal, which appear to be very low. Having regard to the nature of the injuries sustained and period of treatment MACA 1345/05 6 the claimant has undergone, we feel that a compensation of Rs.15,000/- for pain and suffering and Rs.10,000/- for loss of amenities and enjoyment in life would be reasonable. 11. Towards loss of earning Rs.3,000/- was awarded by the Tribunal i.e., for two months at the rate of Rs.1,500/- per month. We have fixed monthly income of the claimant as Rs.2,500/-, therefore, towards loss of earning the claimant is entitled to Rs.5,000/-. 12. Thus the claimant is entitled to additional compensation of Rs.32,000/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realization. The Tribunal awarded interest at the rate of 6% p.a., which appears to be very low. Therefore, for the compensation awarded by the Tribunal also the claimant is entitled to interest at the rate of 9% per annum from the date of petition till realization. The claimant is entitled to proportionate cost. The third respondent Insurance Company shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this MACA 1345/05 7 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