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 FEBRUARY 2011 / 9TH PHALGUNA 1932 MACA.No. 1238 of 2005() ----------------------- OPMV.439/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): APPELLANT/CLAIMANT: --------------------------------- ATHIKAVIL KUNHIMON @ ABOOBACKER SIDDIQUE S/O. ABDURAHIMAN, KUMMINIPARAMBA P.O., KONDOTTY, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): 1ST,2ND & 3RD RESPONDENTS: ----------------------------------------- 1. K. SALEEM, S/O. ABDULLA K., KARATHAMAKKATH HOUSE, CHETTIPADI P.O., PARAPPANANGADI, MALAPPURAM DISTRICT. 2. A. KUNHABDULLA, ACHOTH HOUSE, KALLIKKANDY P.O., THOOVAKUNNU, THALASSERY, MALAPPURAM. 3. THE NEW INDIA ASSURANCE CO. LTD., POOTHERI BUILDING, PEROKE, MALAPPURAM DISTRICT. (RESPONDENTS 4 TO 6 BEFORE THE TRIBUNAL ARE NOT MADE AS PARTIES IN THIS APPEAL, SINCE NO RELIEFS ARE CLAIMED AGAINST THEM). ADV. SRI.PMM.NAJEEB KHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1238 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.439/2000 on the file of Motor Accidents Claims Tribunal, Manjeri. In this appeal he challenges the judgment and award of the Tribunal dated August 13,2004 awarding a compensation of Rs.91,590/- 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 September 3, 1999 at about 5 p.m. : 1. Lacerated wound 25 x 5 cm. on antero lateral aspect of right leg exposing the fractured tibia and fibula. 2. Muscles of all the three compartment crushed and two third of tibial shaft exposed. 3. Type III B open fracture both bones. 2. The accident happened while the claimant was pillion riding on the motor cycle bearing Reg.No.KL-10/G-6208 ridden by the fourth respondent in the O.P. from Kondotti to Chelari When he reached at Ungungal, a trekker bearing Reg.No.KL-13/A-9501 driven MACA.No.1238/2005 2 by the first respondent dashed against the motor cycle of the claimant. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,00,000/-. 3. Respondents 1 to 3 are the driver, owner and insurer of the offending trekker. Respondents 4 to 6 in the O.P. are the rider, owner and insurer of the motor cycle involved in the accident. Respondents 1, 2, 3 and 5 in the O.P. remained absent before the Tribunal. Respondents 3 and 6, the insurers of the vehicles filed written statements admitting the policy of the respective vehicles. 4. PW1 was examined and Exts.A1 to A6 and Ext.X1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending trekker by first respondent and awarded a compensation of Rs. 91,590/- with interest @ 6% per annum from the date of petition till realisation and a cost of Rs.1,500/- against respondents 1 to 3. The claimant has now come up in appeal MACA.No.1238/2005 3 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 first 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 Tribunal awarded a total compensation of Rs.91,590/-. The break up of the compensation amount awarded is as under: Loss of earnings - Rs. 5,400/- Transport to hospital - Rs. 1,000/- Extra nourishment - Rs. 2,000/- Medical expenses - Rs.34,470/- Pain and suffering - Rs.10,000/- Disability - Rs.36,720/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and for the pain and suffering endured by the claimant. He pointed out that no compensation was awarded for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as MACA.No.1238/2005 4 Rs.1,800/- and took the percentage of disability as 10% and adopted a multiplier of 17 and awarded Rs. 36,720/- for the disability caused. According to the claimant, he was a mason earning Rs.200/- per day. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,250/-. The percentage of disability as 10% as certified by the Doctor in Ext.X1 and the multiplier as 17 taken by the Tribunal are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 45,900/- ( 10% x 2250 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.9,180/-. 10. The Tribunal awarded Rs.10,000/- for pain and suffering endured by the claimant. Taking into consideration the nature of the injuries sustained by the claimant, we feel that an additional compensation of Rs. 20,000/- would be reasonable on this count. 11. No compensation is seen awarded for loss of amenities and enjoyment in life. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be MACA.No.1238/2005 5 reasonable on this count. 12. There is another aspect in this case. The Tribunal awarded Rs. 5,400/- towards loss of earnings for 3 months @ Rs.1,800/- per month. As we have fixed the monthly income of the claimant as Rs. 2,250/-, he is entitled to a compensation of Rs. 6750/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 1,350/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 13. There is another aspect in this case. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 14. In the result, the claimant is found entitled to an additional compensation of Rs.45,530/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation and MACA.No.1238/2005 6 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.1238/2005 7