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 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 MACA.No. 1476 of 2004() ----------------------- OPMV.106/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: ---------------------------- BABU @ BABY, SON OF JOSEPH, PALLICHIRA, THOKKUPARA, THOKKUPARA P.O., CHITHIRAPURAM, ADIMALI. BY ADV. SRI.P.V.ELIAS SRI.N.N.ELAYATH RESPONDENTS/RESPONDENTS: ------------------------------- 1. SHAFY MOHAMMED SON OF MUHAMMED, THONDIYACKAL HOUSE, KOOMBANPARA. 2. GOPALAKRISHNAN, SREEKRISHNAVILASAM, VELLATHOOVAL. 3. UNITED INDIA INSURANCE CO.LTD., MUNNAR. 4. K.M. SAIDU SON OF MUHAMMED ALI SAIDU KALLUVETTUKUZHY, THOKKUPARA. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. ------------------------- M.A.C.A No.1476 of 2004 -------------------------- Dated this the 25th February, 2010 J U D G M E N T Barkath Ali,J. In this appeal under Section 173 of the Motor Vehicles Act the claimant in O.P. (MV) No.106/2001 of the Motor Accidents Claims Tribunal, Thodupuzha challenges the judgment and award of the Tribunal dated May, 06, 2004 awarding a compensation of Rs.67,490/- for the loss caused to the claimant on account of the injury sustained in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant is a fish merchant earning Rs.5000/- per month, according to him. On November 21, 2000 while he was travelling as a pillion rider on a motor cycle bearing Reg.No.KL-6/7821 along the National Highway - 47 and reached at Chaitupara, a jeep bearing Reg. No.KL6 555 came at a high speed from the opposite side and dashed against the motor cycle. The claimant sustained serious injuries. According to him, the accident occurred due to the rash and negligent driving of the offending jeep by the 1st respondent. First respondent as the driver, 2nd respondent M.A.C.A No.1476 of 2004 2 as the owner and 3rd respondent, insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2 remained absent and were set ex parte by the Tribunal. Third respondent, insurer of the offending vehicle filed a written statement admitting the policy but contended that there was also negligence on the part of the rider of the motor cycle. The rider of the motor cycle was subsequently impleaded as 4th respondent in the Original Petition. He filed a written statement alleging negligence on the part of the driver of the jeep. 4. The claimant was examined as PW1 and Exts.A1 to A15 were marked on his side before the Tribunal. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence on the part of the 1st respondent and awarded a compensation of Rs.67,490/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to negligence on the part of the 1st respondent is not challenged in this appeal. Therefore, the only question which arise for consideration is M.A.C.A No.1476 of 2004 3 whether the claimant is entitled to any enhanced compensation. The claimant sustained the following injuries: i. Lacerated wound with fracture of lower 1/8th of right leg ii. Compound fracture of right calcanium navicular bone right foot and iii. Laceration on the right arm and head injury 6. Ext.A4 is the copy of the wound certificate issued from the Hospital. Ext.A7 is the discharge certificate. Ext.A11 is the discharge summary. Ext.A13 certificate of disability shows that the claimant has suffered a permanent disability of 5%. 7. The Tribunal awarded Rs.67,490/- as compensation. The break up figures of the award amount is as under: Loss of earning - Rs.12,000/- (for six months at the rate of Rs.2000/- per month) Transport to hospital - 250 Extra nourishment - 500 Damage to clothing - 250 Bystander expenses - 1,500 Hospital expenses - 32,988 Pain and suffering - 20,000 ------------------ Total 67,488 ======== (rounded to Rs.67,490/-) M.A.C.A No.1476 of 2004 4 8. Learned counsel for the appellant/claimant submitted that no compensation has been awarded for the disability caused that as Ext.A13 certificate of disability shows that he has suffered a permanent disability of 5%, he is entitled to compensation for the disability caused and for the consequential loss of earning power. There is force in the above contention. The claimant testified as PW1 that as a fish merchant he used to earn Rs.5,000/- per month. As there are no documents to prove his income, the Tribunal is perfectly justified in fixing his income as Rs.2,000/- per month. 9. Learned counsel for the appellant/claimant produced a copy of the certificate of disability for our perusal which shows that the applicant has now muscle termination at the fracture site of right leg and limitation of dorsi flexion of right foot. Therefore, we feel that the percentage of disability assessed by the Doctors as 5% can be accepted. The claimant was aged 36. Therefore, the multiplier of 17 would be reasonable in this case. Thus calculated for the disability caused, the claimant is entitled to compensation of Rs.20,400/-. (5% of 2000 x 12 x 17). M.A.C.A No.1476 of 2004 5 10. Regarding the compensation awarded by the Tribunal under other heads, we feel that the same is reasonable. Further, it is not questioned before us. 11. Thus the claimant is entitled to additional compensation of Rs.20,400/-. He is entitled to interest @ 9% per annum from the date of petition till realisation with proportionate costs. Third respondent, insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment before the Tribunal. The award of the Tribunal is modified to that extent. This appeal is disposed of, as found above. A.K.BASHEER,JUDGE P.Q. BARKATH ALI, JUDGE ma M.A.C.A No.1476 of 2004 6 M.A.C.A No.1476 of 2004 7