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 15TH FEBRUARY 2010 / 26TH MAGHA 1931 MACA.No. 1683 of 2004() ----------------------- OPMV.658/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): PETITIONER ----------------------- M.GOPAKUMAR, VILAYIL VEEDU, CHANGA P.O., ARYANADU, NEDUMANGAD TALUK, TRIVANDRUM. BY ADV. SRI.M.M.HUSAIN RESPONDENT(S): RESPONDENTS --------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM. 2. S.JAYA RAJ, CHAMMUNNUVILA VEEDU, NEAR NEMOM POLICE QUARTERS, NEMOM, THIRUVANANTHAPURAM. 3. K.PRABHAKARAN NAIR, THIRUVATHIRA, VELLANAD, NEDUMANGAD. 4. M/S.UNITED INDIA INSURANCE COMPANY, BRANCH OFFICE, HOSPITAL JUNCTION, NEYYATTINKARA. ADV. SRI.P.SANKARANKUTTY NAIR FOR R4 SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC FOR R1 SRI SAJIVE KUMAR K. GOPAL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1683 of 2004 ------------------------------------------------------ Dated: FEBRUARY 15, 2010 JUDGMENT Barkath Ali, J. The challenge in this appeal under sec.173 of the Motor Vehicles Act by the claimants is to the judgment of the Motor Accidents Claims Tribunal, Trivandrum in OP(MV) 658/1998 dated October 9, 2002 awarding a compensation of Rs.58100/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts in brief are these: The claimant was aged 28 and was having a monthly income of Rs.4000/- as a driver. On December 6,1997 while he was pillion riding on the scooter bearing registration No.KL-01 T.9599 which is owned by the 3rd respondent and insured with the 4th respondent, between Pangode and Vellanad, a KSRTC Bus bearing registration No.KL-15 0767 driven by the 2nd respondent came at a high speed and dashed against the scooter in which the claimant was pillion riding. The claimant sustained serious injuries. According to the claimant the accident occurred due to the rash and negligent driving of the KSRTC Bus by the 2nd respondent. He has claimed a compensation of Rs.2 lakhs. 3. The 1st respondent, K.S.R.T.C. represented by the Managing Director, and the 4th respondent Insurance Company of the scooter M.A.C.A. 1683 of 2004 2 filed separate written statements. The 1st respondent would contend that the accident occurred due to the negligence on the part of the rider of the scooter while the 4th respondent Insurance Company would contend that the accident occurred due to the negligence on the part of the 2nd respondent, driver of the bus. 4. PW.1 was examined and Exts.A1 to A9 were marked on the side of the claimant. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence awarded a compensation of Rs.58,100/-. Dissatisfied with the quantum of compensation awarded, the claimant has now come up in appeal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the offending bus by the 2nd respondent is also not challenged in this appeal. Therefore the only question to be decided is whether the claimant is entitled to any enhanced compensation. 6. The Tribunal awarded compensation as follows:- pain and suffering Rs.12,000/- loss of earnings 12,000 treatment expenses 1,000 transportation 3,000 damage to clothing 500 M.A.C.A. 1683 of 2004 3 loss of earning power 21,600 loss of amenities 8,000 ------------- Total 58,100 ========= 7. Ext.A3 is the copy of the wound certificate, Ext.A4 is the copy of the OP ticket and Ext.A6 is the disability certificate. A copy of Ext.A6 is produced by the counsel for the appellant for our perusal which shows that the claimant has sustained the following injuries:- 1. Malunited fracture midshaft both bones (L) leg with 10° inward and posterior bowing 2. Persistent tenderness at fracture site with excess callus. 3. Partial ankylosis (L) knee with with motion limited to an area from 180° line to 120° flexion. 4. Restriction of terminal degrees of plantar and dorsiflexion of (L) Ankle. 5. Quadriceps wasting of 5 cm at (L) mid thing. The Tribunal assessed the disability of the claimant at 5%. The claimant was a driver by profession and was earning a monthly income of Rs.4000/- as evidenced by his salary certificate Ext.A7. Therefore we feel that his disability can be taken as 10% as certified by the doctor in Ext.A6. The Tribunal took the monthly income of the claimant as only Rs.2000/-. As the claimant is a driver by profession, M.A.C.A. 1683 of 2004 4 we feel that his monthly income can be reasonably fixed at Rs.2500/-. Thus, towards the disability caused, the claimant is entitled to a total compensation of Rs.54000/- (10% of 2500 x 12 x 18). Thus on this count the claimant is entitled to an additional compensation of Rs.32400/-. 8. Towards treatment expenses the Tribunal awarded only Rs.1000/- which appears to be very low. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs.5000/- would be reasonable towards treatment expenses. Thus on this count he is entitled to an additional compensation of Rs.4000/-. 9. Towards loss of earnings the Tribunal has awarded Rs.12000/- for six months at the rate of Rs.2000/- per month. As we have fixed the monthly income of the claimant as Rs.2500/-, on this count he is entitled to a compensation of Rs.15000/-. Thus on this count the claimant is entitled to an additional compensation of Rs.3000/-. 10. Thus the claimant is entitled to an additional compensation of Rs.39,400/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation and proportionate costs. M.A.C.A. 1683 of 2004 5 Respondents 1 and 2 shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to that extent. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-