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 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 MACA.No. 403 of 2005 (B) ---------------------- (OPMV.530/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA) .................... APPELLANT/ADDL. PETITIONERS NO.1 1 & 2 ----------------------------------------------------------------- 1. ONACHAN @ JOHN, AGED 49 YEARS, S/O.OUSEPH, KUNNAMPURATH HOUSE, MAROTTICHAL DESAM, MANNAMANGALAM VILLAGE, THRISSUR DISTRICT. 2. MARY AGED 45 YEARS, W/O.ONACHAN @ JOHN, KUNNAMPURATH HOUSE, MAROTTICHAL DESAM, MANNAMANGALAM VILLAGE, THRISSUR DISTRICT. 3RD ADDL. APPELLANT IMPLEADED ------------------------------------------------------ ADDL.A3. JISHO, AGED 26 YEARS, S/O.JOHN, KUNNAMPURATH HOUSE, MAROTTICHAL DESAM, MANNAMANGALAM VILLAGE, THRISSUR DISTRICT; IS IMPLEADED AS 3RD ADDL. APPELLANT AS PER ORDER DATED 21.3.07 IN IA. 568/07. BY ADV. SRI.P.G.SURESH RESPONDENTS/RESPONDENTS NO.1 TO 3 --------------------------------------------------------------- 1. SOLOMAN MATHAI, S/O.MATHAI, NEDUNGOTTIL HOUSE, P.O.MUTTITHADI, KALLOOR VILLAGE, THRISSUR DISTRICT. 2. T.L.BABU, S/O.LONA, THENGINTHOTTATHIL HOUSE, P.O.CHERUMKUZHY ASARIKKAD DESAM, THRISSUR. 3. THE MANAGER, NATIONAL INSURANCE COMPANY LTD., PATTALAM ROAD, THRISSUR. R3 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q.BARKATH ALI, JJ. = = = = = = = = = = = MACA.No.403 of 2005. = = = = = = = = = = = Dated this the 27th day of September, 2010. J U D G M E N T Barkath Ali, J. The appellants are the additional claimants in OP(MV) No.530/1999 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda who are the parents and brother of deceased Shijo who sustained the following injuries in a motor accident that occurred on January 26, 1999 at 1.00 am:- 1) Diffuse cerebral oedema. 2) Sub arachnoid haemorrhage. 3) Scapula right, fracture. During the pendency of the Original Petition the first claimant died. Therefore present appellants are impleaded as additional claimants. The accident happened while deceased/claimant was pillion riding on a motor cycle bearing registration No.KL-8/L 1105 along Mannamangalam MACA.No.403 of 2005. 2 - Marotichal road. At that time a tempo van bearing registration No.KL-8/F 6794 driven by the first respondent came at a high speed in a rash and negligent manner and dashed against the motor cycle of the claimant. The first claimant sustained serious injuries. Therefore, alleging negligence against the first respondent, the driver of the tempo van he filed the OP before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.5,50,000/-. 2. Respondents 1 and 2 the driver and the owner of the offending tempo van remained absent before the Tribunal. The 3rd respondent, insurer of the offending vehicle admitted the policy and further contended that there was also negligence on the part of the rider of the motor cycle. 3. Pws.1 and 2 were examined and Exts.A1 to A15 were marked on the side of the claimants before the Tribunal. No evidence was adduced by the contesting third MACA.No.403 of 2005. 3 respondent. The Tribunal on an appreciation of the evidence awarded a compensation of Rs.65,000/- with interest at the rate of 6% per annum from the date of petition till realisation with cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the appellants/claimants 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 was not challenged in this appeal. Therefore the only question which arises for consideration in this appeal is whether the claimants are entitled to any enhanced compensation? 6. The Tribunal awarded a compensation of Rs.65,000/-. The break up of the compensation awarded is as under: Loss of earning for one year : Rs.18,000/- @ Rs.1,500/- per month. MACA.No.403 of 2005. 4 Transportation expenses : Rs. 2,500/- Medical expenses : Rs.17,000/- Bystander expenses : Rs. 1,500/- Pain and suffering : Rs.20,000/- Loss of amenities and enjoyment in life : Rs. 6,000/- --------------------- Total : Rs.65,000/- --------------------- 7. Counsel for the appellants/claimants pointed out that no compensation was awarded for the disability caused. Ext.A11, the certificate of disability issued by the Neurosurgeon of Medical College Hospital, Thrissur shows that claimant has a disability of 64%. While the Medical Board of Medical College Hospital, Thrissur certified in Ext.A13 that the claimant had a disability of 40%. The claimant has the following disabilities as seen from Ext.A11: 1. Right monoplegia Flail right upper limb with grade O power due to avulsion injury brachial plexus – 50%. 2. Anaesthesia right upper limb – 10% 3. Right upper limb dominance – 4% Total disability 64% (sixty four) MACA.No.403 of 2005. 5 Taking into consideration the above aspect, we feel that the percentage of the disability suffered by the first claimant can be reasonably fixed at 40% as assessed by the Medical Board in Ext.A13. The claimant was aged 19 at the time of accident and was working as a goldsmith. Therefore,we feel that his monthly income can be reasonably fixed as Rs.2,500/-. As he was aged only 19, the multiplier of 16 would be reasonable in this case. Thus calculated, the appellants are entitled to a compensation of Rs.1,92,000/- (40% of Rs.30,000/- x 16) for the disability caused. 8. The Tribunal awarded a compensation of Rs.18,000/- loss of earning, for one year at the rate of Rs.1,500/- per month. As we have fixed monthly income of the deceased first claimant as Rs.2,500/-, the claimants are entitled to a compensation of Rs.30,000/- towards loss of earning of the deceased first claimant. As regards the compensation awarded under other heads, we find the same to be reasonable and, therefore, we are not disturbing the MACA.No.403 of 2005. 6 same. In the result, the appellants are found entitled to an additional compensation of Rs.2,04,000/-. They are entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded as well as for the enhanced compensation from the date of petition till realisation and proportionate cost. The third respondent Insurance Company shall deposit the amount before the Tribunal within two months from the date of receipt of copy of this judgment. The appeal is disposed of as found above. A.K.BASHEER, Judge. P.Q.BARKATH ALI, Judge. kvs/-