IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 MACA.No. 1749 of 2007() ----------------------- OPMV.131/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- M. JOSE, KOCHUPARAMBIL, KARITHURA, CHAVARA P.O., KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): RESPONDENTS: --------------------------- 1. M/S. JYOTHI NIKETHAN, REPRESENTED BY ITS MANAGER, JYOTHINIKETHAN, ALPPATHRARKAR COLONY HOUSE, 180, NEW POWER HOUSE ROAD, JODHPUR. 2. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., KOLLAM. 3. RASEENA, WIFE OF LATE SALIM, KAVINTE PADINJATTATHIL, MAKKAD MURI, CHAVARA P.O., PANMANAM, KOLLAM. 4. SAJEENA, AGED 5 YEARS, D/O. RASEENA, RESIDING AT KAVINTE PADINJATTATHIL, MAKKAD MURI, CHAVARA P.O., PANMANA, KOLLAM, (REPRESENTED BY THE THIRD RESPONDENT AS THE MOTHER AND GUARDIAN). 5. SABEENA, AGED 3 YEARS, D/O. RASSENA, RESIDING AT KAVINTE PADINJATTATHIL, MAKKAD MURI, CHAVARA P.O., PANMANA, KOLLAM. (REPRESENTED BY THE THIRD RESPONDENT AS THE MOTHER AND GUARDIAN). ADV. SRI.SIBY MATHEW FOR R2 SRI.PHILIP J.VETTICKATTU FOR R2 SRI.B.PREMNATH (E) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1749 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.131/1998 on the file of Motor Accidents Claims Tribunal, Kollam. In this appeal he challenges the judgment and award of the Tribunal dated December 20, 2003 awarding a compensation of Rs.3,95,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on November 15, 1997 at about 4.30 a.m. : Lacerated injury on back of scalp 7 x 1 x bone deep. Fracture dislocation of T9-10 with complete paraplegia. 2. The accident happened while the claimant was travelling in a Tata Sumo jeep bearing Reg.No.RJ-19/1C-326 along Kollam- Alappuzha National Highway. When he reached at Kottamkulangara Junction, the jeep dashed against a tree and a compound wall on the side of the road. Alleging negligence against the driver of the jeep, the MACA.No.1749/2007 2 claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 7,00,000/-. 3. The driver of the jeep died. Therefore, his legal heirs were impleaded as respondents 3 to 5 in the O.P. First respondent is the owner of the offending jeep and second respondent is its insurer. Respondents 1, 3 to 5 remained absent before the Tribunal. The second respondent, the insurer of the offending jeep filed a written statement admitting the policy, but denied the liability. 4. PW1 was examined and Exts.A1 to A8 series were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by its driver and awarded a compensation of Rs. 3,95,000/- with interest @ 9% per annum from the date of petition till realisation. 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 MACA.No.1749/2007 3 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 driver of the jeep 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.3,95,000/- The break up of the compensation amount awarded is as under: Loss of earning - Rs. 27,000/- Transportation - Rs. 10,000/- Treatment expenses - Rs. 27,000/- Bystander expenses - Rs. 10,000/- Extra nourishment - Rs. 6,000/- Pain and suffering - Rs. 50,000/- Disability - Rs.2,44,800/- Future treatment exp. - Rs. 20,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/- and took the percentage of disability as 80% and adopted a multiplier of 17 as the claimant was aged 25 at the time of the accident MACA.No.1749/2007 4 and awarded Rs. 2,44,800/- for the disability caused. According to the claimant, he was working as a Photographer-cum-Videographer earning Rs.5,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. In Ext.A9 certificate of disability it is stated that the claimant is suffering from paraplegia with loss of bladder and bowel functions and sensorring as beyond T9 level. Taking into consideration the disabilities noted in Ext.A9, we feel that the percentage of disability can be reasonably fixed at 100%. The multiplier of 17 taken by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 5,10,000/- ( 100% x 2500 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.2,65,200/-. 10. There is another aspect in this case. The Tribunal awarded Rs. 27,000/- towards loss of earnings for 18 months @ Rs. 1,500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,500/-, he is entitled to a compensation of Rs. 45,000/- towards MACA.No.1749/2007 5 loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 18,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. In the result, the claimant is found entitled to an additional compensation of Rs. 2,83,200/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The second 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 sv. MACA.No.1749/2007 6 MACA.No.1749/2007 7