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 14TH JUNE 2010 / 24TH JYAISTHA 1932 MACA.No. 1498 of 2004() ----------------------- OPMV.1113/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER: ----------------------------------- NISHA, AGED 22 YEARS, D/O.NAFEESA, THERUPEEDIKAYIL HOUSE, KADALAI,KARUMATHRA P.O. KONATHUKUNNU VIA, THRISSUR DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS: --------------------------- 1. VIMALA RAVEENDRANATH, GOPIKRISHNA, POONKUNNAM, THRISSUR DISTRICT. 2. C.J.TOMI, S/O.JOSE, CHALISSERY KUTTEEKKARAN HOUSE, ARIMBUR P.O. ERAVU DESOM, THRICHUR DISTRICT. 3. THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, THRISSUR BRANCH OFFICE, PATTALAM ROAD, THRISSUR. ADV. SRI.DILIP J. AKKARA FOR R1 SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1498 of 2004 ------------------------------------------------------ Dated: JUNE 14, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 1113/1997 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, challenges the judgment and award of the Tribunal, dated, January 1, 2004 awarding a compensation of Rs.50000/- for the loss caused to the claimant on account of the injuries sustained by her in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was a girl aged 15 at the time of the accident. On September 1, 1997 at about 9 a.m. while the claimant was walking along the side of Thrissur - Kodungallur public road she was knocked down by a bus bearing registration No.KL-8/C 351 driven by the 2nd respondent. The claimant sustained serious injuries. According to the claimant the accident occurred due to the rash and negligent driving of the bus by the 2nd respondent. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.One lakh. M.A.C.A. 1498 of 2004 2 3. Respondent 1, the owner of the offending bus, remained absent and was set ex parte. The 2nd respondent, driver of the offending bus, though entered appearance did not file any written statement. The 3rd respondent, insurer of the offending bus, filed a written statement admitting the policy. 4. PWs.1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.50,000/- with interest at 6% per annum from the date of petition till realisation and proportionate costs. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the 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 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. 7. The claimant sustained the following injuries as revealed M.A.C.A. 1498 of 2004 3 from Ext.A3, discharge certificate issued from the Elite Mission Hospital, Thrissur. “ 1. Fracture of neck of femur. 2. Fracture of distal radius (left) 3. Contusions right side of forehead. 4. Contusions right parieto occipital region of scalp left forearm.” Ext.A6 and A6(a) are the discharge cards and Ext.A7 is the discharge certificate issued from the hospital showing that there was shortening of 1½ cms. and stiffness on the hip and that she has permanent disability of 20%. 8. The Tribunal awarded a total compensation of Rs.50,000/-. The break up of the compensation awarded is as under:- Transportation - Rs.1,000/- medical expenses - 25,000/- bystander's expenses - 1,500/- permanent disability - 11,500/- pain and suffering - 6,000/- loss of amenities - 5,000/- 9. The Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs.1200/- and took the percentage of disability as 5% and adopted a multiplier of 16 and awarded M.A.C.A. 1498 of 2004 4 Rs.11,500/- for the disability caused. In the light of the principles laid down in Sasidharan N. and another v. Anandan and others {2009 (1) KHC 973 (DB)} of this Court, the monthly income of the claimant can be reasonably fixed at Rs.1750/-. As there is shortening of the leg of the claimant, we feel that her percentage of disability can be reasonably assessed at 10%. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.33,600/- Thus on this count the claimant is entitled to an additional compensation of Rs.22,100/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 10. Thus the claimant is entitled to an additional compensation of Rs.22,100/-. She is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 3rd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. 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 M.A.C.A. 1498 of 2004 5 mt/-