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 28TH MARCH 2011 / 7TH CHAITHRA 1933 MACA.No. 2027 of 2007() ------------------------------------ OPMV.509/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/PETITIONER ------------------------------------ VIJAYAN, S/O. VASU, KANIAMPATHIYIL HOUSE, PERUNTHANAM KARA, UZHAVOOR VILLAGE & P.O. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENTS/RESPONDENTS ----------------------------------------------- 1. RAJESH, S/O. SASIDHARAN, PALACKAL PADAVIL HOUSE, KUDAKKACHIRA KARA, VALLICHIRA VILLAGE, KOTTAYAM DISTRICT. 2. SHIBU, S/O. DAMODHARAN, KAKKANATTU HOUSE, TEEKOY. 3. THE NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, ETTUMANOOR BRANCH. R3 BY ADV. SRI.N.S.MOHAMMED USMAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2027 OF 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 28th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.509/2004 on the file of the Motor Accidents Claims Tribunal, Pala. In this appeal she challenges the judgment and award of the Tribunal dated January 14, 2007 awarding a compensation of `52,225/- for the loss caused to her on account of the injuries sustained by her in a motor accident. 2. The accident happened on May 20, 2004 at about 7.15 p.m. at Uzhavoor. While th claimant was travelling in an auto-rickshaw bearing registration No.KL-5/H-8059 along Uzhavoor – Kurianadu road, the driver of the auto- rickshaw lost control and it capsized. As a result of the accident he sustained swelling and deformity right wrist, comminuted fracture lower end of right radius, lacerated wound forehead about 7 x 1 cm. in size and cerebral concussion. Alleging negligence against the first MACA 2027/2007 2 respondent, the driver of the auto-rickshaw, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 1,50,000/- 3. Respondents 1 to 3 are the driver, registered owner and insurer respectively of the offending auto- rickshaw. Addl.4th respondent was impleaded as the present owner of the offending auto-rickshaw. Respondents 1, 2 and 4 remained absent and they were set ex parte by the Tribunal. The third respondent, the insurer of the offending auto-rickshaw, filed a written statement admitting the policy. Exts.A1 to A12 were marked on the side of the claimant. Exts.B1 and B2 were marked on the side of the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the first respondent and awarded a compensation of ` 52,225/- with interest @ 7.5% p.a. from the date of petition till realization and a cost of 1,300/- . The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA 2027/2007 3 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the first respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The Tribunal awarded a total compensation of `52,225/-. Break up of the compensation awarded is as under:- Medical expenses : ` 15,975 Loss of earning : ` 4,000 Bystander's expenses : ` 1,500 Extra nourishment : ` 250 Damage to clothing : ` 250 Transport to hospital : ` 250 Pain and suffering : ` 12,000 Loss of amenities and : ` 3,000 Enjoyment in life. Permanent disability caused : ` 15,000 ------------------ Total : `52,225 ======= 7. The counsel for the claimant sought enhancement MACA 2027/2007 4 of compensation for the disability caused, loss of amenities and enjoyment in life and for pain and suffering endured by the claimant. 8. The Tribunal took the monthly income of the claimant as ` 2,000/-, took the percentage of disability as 4%, adopted multiplier of 16 and awarded a compensation of Rs.15,000/- for the permanent disability caused. In Ext.A12 certificate of disability it is certified that the claimant has shortening of right radius by 1.5 cm., the wrist movements are terminally restricted (dorsi-flexion 40 degrees and palmar flexion 50degrees) and the left shoulder abduction is restricted to 110 degrees. The doctor has assessed permanent disability of the claimant as 11%. As the percentage of disability assessed by the doctor is for that portion of the body, we feel that 4% of disability assessed by the Tribunal is reasonable. The Tribunal took the monthly income of the claimant as ` 2,000/-. As he was aged 35 at the time of the accident, we feel that his monthly income can reasonably be fixed as ` 2,500/-. The multiplier MACA 2027/2007 5 adopted by the Tribunal as 16 is found to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of ` 19,200/- . Thus the claimant is entitled to an additional compensation of ` 4,200/- on this count. 9.The Tribunal awarded `12,000/- for pain and suffering endured by the claimant and ` 3,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained, we feel that a compensation of `15,000/- for pain and suffering and ` 10,000/- for loss of amenities and enjoyment in life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 10. In the result, the claimant is found entitled to an additional compensation of `14,200/- with interest @ 7.5% per annum from the date of petition till realization. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of MACA 2027/2007 6 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