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 8TH FEBRUARY 2010 / 19TH MAGHA 1931 MACA.No. 458 of 2004() ---------------------- OPMV.985/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/PETITIONER: ----------------------------------- P.L.SUDHEER, S/O.PADMANABHAN KUTTY, THYVILLA HOUSE, PERUKAVU PO, THIRUVANANTHAPURAM. BY ADV. SRI.VAZHUTHACAUD R.NARENDRAN NAIR RESPONDENT(S): RESPONDENTS: --------------------------- 1. R.CHELLAPPAN, S/O.RAMAN, APSARA SADANAM MANAKAILA P.O, ADOOR, KOLLAM. 2. R.AJIT KUMAR, S/O.RAMACHANDRAN PILLAI, AJI MANDIRAM, THUVIYOOR, THEKKUMURI, KADANGANAD, ADOOR, KOLLAM. 3. M/S.NEW INDIA ASSURANCE COMPANY LTD DIVISIONAL OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIVISIONAL MANAGER. ADV. SRI.A.C.DEVY FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.458 of 2004 ------------------------------------------------------ Dated: FEBRUARY 8, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act, the claimant in OP (MV) 985/1998 of Motor Accidents Claims Tribunal, Trivandrum, challenges the judgment and award of the Tribunal dated August 13, 2003 granting a compensation of Rs.67,240/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts in brief are these:- The claimant is aged 27 and is a Mridangam and Khadam Artist earning Rs.6000/- per month. On October 22, 1997 while he was riding his scooter bearing registration No. KEV 4124 from Poojappura to Thirumala, and when he reached near Poojappura Mandapam, a jeep bearing registration No.KL.01/3C 5648 owned by the 1st respondent and driven by the 2nd respondent came at a high speed from the opposite side and dashed against the scooter of the claimant. The claimant sustained fracture of both bones of the right leg. He claimed a compensation of Rs.2 lakhs. 3. The 1st respondent, the owner of the offending vehicle, remained absent and was set ex parte. The 2nd respondent, driver of M.A.C.A.458 of 2004 2 the offending vehicle, filed a written statement contending that the accident occurred due to the negligence on the part of the claimant. The 3rd respondent, the insurer of the offending vehicle, admitted the policy, but disputed the age, occupation and income of the claimant. 4. No oral evidence was adduced by the claimant or the contesting respondents. On the side of the claimant Exts.A1 to A11 were marked. No documents were marked on the side of the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by the 2nd respondent and granted a compensation of Rs.67,240/-. Dissatisfied with the compensation awarded, the claimant has now come up in appeal. 5. The accident is not disputed. It is also not in dispute that the accident occurred due to the negligence on the part of the 2nd respondent, driver of the offending jeep. Therefore the only question to be decided is whether the claimant is entitled to any enhancement of compensation. 6. The applicant sustained Type I compound fracture both bones on his right leg. Ext.A3 is the copy of the wound certificate issued from the Medical College Hospital, Trivandrum and Ext.A5 is the reference card issued from the hospital. Exts.A6 to A8 are referral O.P. cards. Ext.A9 is the disability certificate issued by the Professor M.A.C.A.458 of 2004 3 of Orthopedic, Medical College Hospital showing that the appellant has a permanent disability of 17%. It is also certified in Ext.A9 that there was a uni-fracture of tibia, open reduction and internal fixation and inter-nailing was done. 7. The Tribunal awarded compensation as follows:- Disability 7% (multiplier 18) 2000 x 12 x 18 x 7% - Rs.30,240 Loss of future earnings and loss of } amenities and enjoyment of life } Rs.10,000 Pain and suffering - 15,000 Loss of earnings - 8000 (2000 x 4) Incidental expenses - 1000 By-stander's expenses - 2000 Transportation - 1000 8. Learned counsel for the appellant mainly disputed the compensation awarded for the disability caused. The Tribunal has taken the monthly income of the claimant as Rs.2000/- and assessed the disability at 7%. The claimant is a Mridangam teacher in Naadabhrama Academy of Fine Arts earning Rs.6000/- per month and was aged 27 as seen from Ext.A10, his employment certificate, and Ext.A11, copy of page 1 of his SSLC Book. 9. Taking into consideration the fact that the petitioner was a M.A.C.A.458 of 2004 4 Mridangam artist and Ext.A10 certificate issued by the Principal of Naadabhrama Academy of Fine Arts, we feel that he would have been easily earning about Rs.3000/- per month as Mridangam and Khadam artist. Therefore we feel that it is reasonable to fix his monthly income as Rs.3000/-. 10. Regarding the percentage of disability, though it was certified in Ext.A9 that the appellant has suffered a permanent disability of 17%, the Tribunal took the percentage of disability as 7% which appears to be very low. There was malunion of fracture and open reduction and internal fixation and inter-nailing had to be done as evidenced by Ext.A9 disability certificate. Therefore we feel that his disability can be assessed as 10%. The Tribunal adopted a multiplier of 18 which is not challenged. Thus calculated, for the disability caused and loss of earning power, the appellant is entitled to a compensation of Rs.64,800/- (10% of 3000 x 12 x 18). Thus the appellant is entitled to an additional compensation of Rs.34,560/- on this count. Towards loss of earnings, the Tribunal has awarded Rs.8000/- i.e. for four months at the rate of Rs.2000/- per month. As we have found, the monthly income of the appellant as Rs.3000/-, on this count he is entitled to a compensation of Rs.12,000/- i.e. additional compensation of Rs.4000/-. In all other aspects, we confirm the finding of the Tribunal. M.A.C.A.458 of 2004 5 11. In the result, the appellant is found entitled to an additional compensation of Rs.38,560/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation. The 3rd respondent, being the insurer of the vehicle, shall deposit the amount before the Tribunal within one month from this date with proportionate cost and interest. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-