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 29TH JULY 2010 / 7TH SRAVANA 1932 MACA.No. 943 of 2004() ---------------------- OPMV.1244/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- RATHNAKARAN, S/O.SUBRAN, MADATHIPARAMBIL HOUSE, MANGUTTYPADAM, MATTATHUR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS --------------- 1. N.K.SHAIJU, S/O.KUTTAN, NJATTUVEETTIL HOUSE, KODALY, PADY P.O., THRISSUR DISTRICT. 2. SURESH KUMAR, S/O.KUTTAN, NJATTUVEETTIL HOUSE, KODALY, PADY P.O., THRISSUR DISTRICT. 3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, CITY HEIGHTS BUILDING, SOUTH JUNCTION, CHALAKUDY. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.943 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1244/2000 on the file of Motor Accidents Claims Tribunal, Irinjalkuda. He sustained the following injuries in a motor accident that occurred on April 16, 2000 at about 11.30 a.m. when the auto rickshaw bearing Reg.No.KL-8/H 1482 in which he was travelling collided head on with another auto rickshaw bearing Reg.No.KL-8/J 9248 at Kodalipadam near Thrissur : 1. Deep lacerated wound 1 x .5 cm. medial side of left ankle. 2. Type II open fracture both bones left leg. 3. Fracture malleolls 2. Alleging negligence against the second respondent, the driver of the auto rickshaw bearing Reg.No.KL -8/J 9248, claimant filed the O.P. under Section 166 of the Motor Vehicles Act before the Motor Accidents Claims Tribunal claiming a compensation of Rs. 3,00,000/-. MACA.No.943/2004 2 3. Respondents 1 and 2 remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement admitting the policy, but contended that there was also negligence on the part of the driver of the other auto rickshaw. 4. Pws 1 and 2 were examined and Exts.A1 to A21 were marked on the side of the claimant. No evidence was adduced on the side of the contesting third respondent. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 90,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. 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 second 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. MACA.No.943/2004 3 7. The break up of the compensation awarded by the Tribunal is as under : Loss of earning - Rs.9,000/- Transportation - Rs.1,500/- Bystander expenses - Rs.1,000/- Disability - Rs.15,300/- Pain and suffering - Rs. 7,000/- Loss of amenities - Rs. 4,200/- Medical bills - Rs.52,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and for pain and suffering endured. 9. The Tribunal took the monthly income of the claimant as Rs. 1500/-, adopted a multiplier of 17 and took the percentage of disability as 5% and awarded Rs. 15,300/- for the disability caused. 10. Claimant was a tailor aged 31 at the time of the accident. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2,500/-. The multiplier adopted as 17 by the Tribunal appears reasonable. PW2, the doctor has assessed the permanent disability of the claimant as 15%. Ext. A8 is the certificate of disability. The claimant has now the following disabilities : MACA.No.943/2004 4 Shortening of the left leg compartment by 1 cm. and limitation of dorsi flexion of last 10 and plantar flexion of last 15 of left ankle. Tenderness on the fracture site and upper motor nerve paresis of left lower limb. He has limping and has difficulty to ambulate freely to the left or to carry heavy weight, to sit or to squat. 11. In the light of the above disability caused to the claimant, we feel that his percentage of disability can be reasonably estimated as 8%. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 40,800/- ( 8% x 2500 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs. 25,500/-. 12. The Tribunal awarded Rs. 9,000/- for loss of earnings for six 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. 15,000/- towards loss of earnings for six months. Thus on this count, the claimant is entitled to an additional compensation of Rs. 6,000/-. 13. The Tribunal awarded Rs. 7,000/- for pain and suffering MACA.No.943/2004 5 endured by the claimant. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. Thus on this count, the claimant is entitled to an additional compensation of Rs. 3,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 14. In the result, the claimant are found entitled to an additional compensation of Rs. 34,500/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third 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.943/2004 6 MACA.No.943/2004 7