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 20TH MAY 2010 / 30TH VAISAKHA 1932 MACA.No. 355 of 2004() ---------------------- OPMV.515/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER IN OP(MV) :- ------------------------------------------------------ K.R.JACOB, S/O.KARAYAMPARAMBIL RAPPAI, VELLANCHIRA 680 683, MUKUNDAPURAM TALUK. BY ADV. MR.P.V.BABY MR.A.N.SANTHOSH RESPONDENT(S)/RESPONDENTS IN OP(MV) :- --------------------------------------------------------------- 1. K.P.PRASANNAN @ K.P.PARAMESWARAN, KAYAMPARAMBATH HOUSE, PULLUT, KODUNGALLUR. 2. P.M.HAZNAR, S/O. MOIDEEN, PUTHIYAVEETTIL HOUSE, KUTTAMANGALAM EDATHURUTHY P.O. 3. NATIONAL INSURANCE CO., NORTH PARUR. ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt A.K.BASHEER & P.Q. BARKATH ALI, JJ. =========================== M.A.C.A. No. 355 of 2004 ================= Dated this the 20th day of May 2010 J U D G M E N T Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No. 515 of 1995 on the file of Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated June 27, 2003, awarding a compensation of Rs.1,36,768/- for the loss caused to the claimants, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- On August 11, 1994 at about 10.30 p.m. the claimant was pillion riding on a scooter bearing Registration No.KBR 3215 along Kattoor road. When he reached at convent junction Edathiruthi a car bearing M.A.C.A. No. 355 of 2004 -2- Registration No.KLH 068 driven by the 2nd respondent came at a high speed and dashed against the scooter of the claimant. The claimant sustained serious injuries. According to the claimant the accident occurred due to the rash and negligent driving of the offending car by the 2nd respondent. 1st respondent as the owner, 2nd respondent driver and the 3rd respondent, the insurer of the offending car are jointly and severally liable to pay compensation to the claimant. 3. The respondents 1 and 2, the owner and the driver of the offending car remained absent and were set ex parte. The 3rd respondent, the Insurer of the offending car filed a written statement admitting the policy and further contending that there was also negligence on the part of the rider of the scooter. 4. Pws.1 & 2 and Exts.A1 to A15 were marked on the side of the claimant. No evidence was adduced by the contesting 3rd respondent. M.A.C.A. No. 355 of 2004 -3- 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd 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. 6. The claimant has sustained the following injuries as revealed from Ext.A6, copy of the wound certificate issued from the West Fort Hospital, Thrissur and Ext.A7, the discharge summary issued from that hospital :- 1. Crush injury right foot, extensive lacerated wound dorsum of right foot. 2. Compound fracture right tibia. 3. Fracture 2nd, 3rd, 4th and 5th meta tarsal right foot. 4. Extensor tendon injuries. He was in the hospital till September 21, 1994. He was managed by Dynamic Axial external fixation with bone grafting. 'K' wire was fixed for the fracture of metatarsals. He had to undergo daily dressing and physiotherapy due to M.A.C.A. No. 355 of 2004 -4- the stiffness to the joints for a period of ten months. Ext.A13 is the certificate to that effect issued from the hospital. Ext.A13, the certificate of disability issued by PW2 shows that the claimant has now a disability of 25%. 7. The Tribunal awarded a total compensation of Rs.1,36,768/-. Break up of the compensation awarded is as under:- Loss of earnings : Rs.65,088/- (1 year @ Rs.5,489/- per month) Medical expenses : Rs.35,400/- Transportation expenses : Rs.2,000/- Bystander expenses : Rs.2,000/- For the disability caused and loss of earnings : Rs.17,280/- Pain and suffering : Rs.10,000/- For loss of amenities and enjoyment of life : Rs.5,000/- ------------------- Total : Rs.1,36,768/- ======== 8. The learned counsel for the Claimant sought enhancement of the compensation for the disability caused, for pain and suffering, for loss of amenities and for loss of earnings. Ext.A15 produced by the claimant shows that he M.A.C.A. No. 355 of 2004 -5- was employed as Sub Engineer in the Kerala State Electricity Board and was drawing a salary of Rs.5,489/- per month. He was aged 47 at the time of the accident. The Tribunal awarded loss of earnings for one year ie; Rs.65,088/-, but actually the claimant produced documents to show that he was on leave for 26 months and 7days due to the injury sustained. Therefore, for loss of earnings, the claimant is entitled to Rs.76,846/- being the salary for 26 months @ Rs.5,489/- per month. 9. For pain and suffering due to injury, the Tribunal awarded a compensation of Rs.10,000/-, which appears to be quite inadequate. Taking into consideration the nature of injury sustained, we feel that Rs.20,000/- would be reasonable on this count. 10. For loss of amenities, Rs.5,000/- was awarded by the Tribunal, which appears to be very low. Having regard to the nature of injury sustained by the claimant, we feel that Rs.10,000/- would be reasonable on this count. M.A.C.A. No. 355 of 2004 -6- 11. For the disability caused and for the consequential loss of earning power Rs.17,280/- was awarded by the Tribunal as compensation. The Tribunal took the monthly income of the claimant as Rs.1,200/- adopted a multiplier of 8 and took the percentage of disability as 25%. PW2, the doctor who issued Ext.A13, the certificate of disability has testified that claimant has loss of soft tissue for the medial compartments of right leg, meta tarsal fractures have mal united with persistant subluxation and osteo arthritis and loss of muscles and that there is shortening of right leg by 2c.m and right foot by 1c.m. The grafted area of the right leg had decreased sensation. The patient was limping. PW2 had further testified before the Tribunal that the claimant has difficulty to stand for long time, to run, to jump, carry heavy weight, to walk for long distance and to drive vehicles. We are of the view that, the percentage of disability caused to the claimant can be reasonably estimated and assessed at 20%. M.A.C.A. No. 355 of 2004 -7- 12. The monthly income of the claimant was taken by the Tribunal as Rs.5,489/-. But for assessing the compensation of the disability caused, the Tribunal took the monthly income of the claimant as Rs.1,200/- and took the disability as 15%. In the light of the salary certificate Ext.A15, we feel that the monthly income for the purpose of assessing the compensation for the disability caused can be reasonably fixed at Rs.3,000/-. The multiplier adopted as 8 by the Tribunal is not seriously challenged. Thus, for the disability caused the claimant is entitled to a compensation of Rs.57,600/-. Thus on this count, the claimant is entitled to an additional compensation of Rs.40,320/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 13. Thus, the claimant is entitled to an additional compensation of Rs.67,078/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and M.A.C.A. No. 355 of 2004 -8- proportionate cost. The 3rd respondent being the Insurer of the offending car shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The impugned award is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. jvt