IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 MACA.No. 2938 of 2008() ----------------------- (OPMV.8/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA) .................... APPELLANT/THIRD RESPONDENT IN THE OP.(MV) ------------------------------------------------------------------------- THE UNITED INDIA INSURANCE CO. LTD., VADAKARA BRANCH, REP. BY THE DEPUTY MANAGER, UNITED INDIA INSURANCE CO. LTD., OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM. BY ADV. SRI.M.A.GEORGE RESPONDENTS/PETITIONER/ AND RESPONDENTS 1 AND 2 IN THE OP.(MV) -------------------------------------------------------------------------------------------------------------- 1. MANOHARAN K., S/O.KRISHNAN NAMBIAR, RAMATH KOYILOTH HOUSE, KANNOOKKARA P.O., ONCHIYAM AMSOM, KANNEEKKARA DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. MUSTHAFA K.K., S/O.ABDURAHIMAN, KOOROOLINI KUNI HOUSE, KADALOOR POST. 3. ABHINASH, S/O.SHANMUGHAN, PARAKKAL THAZHA HOUSE, EDAKKULAM POST, KOYILANDY. R1 BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2938 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 12th day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No. 8 of 2005 on the file of the Motor Accidents Claims Tribunal, Vadakara. In this appeal the appellant challenges the judgment and award of the Tribunal dated June 12, 2008 awarding a compensation of Rs.4,65,207/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The accident happened on March 11, 2004 near Payyoli, Kozhikode. While the claimant was travelling in a bus bearing registration No.KL/11 K 2005 driven by the 2nd respondent in the O.P. it collided head on with a mini lorry bearing registration No. KL/7 AB 788 driven by the 5th respondent in the O.P. Alleging negligence against the 2nd respondent in the O.P., the driver of the mini lorry, the claimant filed the O.P. before the Tribunal under section MACA 2938/2008 2 166 of the Motor Vehicles Act, claiming a compensation of Rs.7.5 lakhs. 3. Respondents 1 to 3 in the O.P. are the owner, driver and insurer of the bus and respondents 4 to 6 are the owner, driver and insurer of the mini lorry. Respondents 1, 2, 4, and 5 remained absent before the Tribunal. Respondents 3 and 6 in the O.P., the insurers of the respective vehicles filed separate written statement before the Tribunal admitting the accident and policies of the respective vehicles but attributed negligence to the driver of the other vehicle. The claimant was examined as PW1 and Exts.A1 to A11 were marked on the side of the claimant. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 2nd respondent in the O.P., the driver of the bus and awarded a compensation of Rs.4,65,207/- with interest @ 6% per annum from the date of petition till realization and cost of Rs.11,750/- against respondents 1 to 3 in the O.P. MACA 2938/2008 3 Respondent No.3 in the O.P., insurer of the bus, has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard learned counsel for the Appellant Insurance Company and learned counsel for the claimants. 5. The only question, which arises for consideration, is whether the compensation awarded by the Tribunal is excessive or not. 6. The claimant sustained the following injuries in the accident:- “1) Fracture of lower end of humerus with bone loss of right hand. 2) Fracture of olecranon ulna of right hand with bone loss. 3) Fracture of neck of scapula of right hand. 4) Pain all over the body.” He has a permanent disability of 22% as certified by the Medical Board in Ext.X1. The Tribunal awarded a compensation of Rs.4,65,207/-. Break up of the compensation awarded is as under:- MACA 2938/2008 4 Hospital expenses : Rs. 2,400 including expenses of by stander and extra nourishment. Transportation : Rs. 2,000 Mental shock and : Rs. 8,000 inconvenience. Medical bills : Rs. 15,957 Loss of income : Rs. 29,775 Pain and suffering : Rs. 20,000 Permanent disability : Rs.3,87,075 ------------------ Total : Rs.4,65,207 ======= 7. Tribunal took the monthly income of the claimant as Rs.9,925/- to assess the loss of dependency, took the percentage of disability as 22% as certified by the Medical Board in Ext.X1, adopted multiplier of 13 and awarded Rs.3,87,075 for the loss of dependency. There is a calculation mistake for the loss of dependency. Therefore, the same is corrected as Rs.3,40,626/-. 8. It is pointed out by the learned counsel for the appellant that the Tribunal is not justified in adopting monthly income of the claimant as Rs.9,925/-, as the income-tax which he has to pay has to be deducted from the same. There is force in the above contention. That being so, MACA 2938/2008 5 we feel that the monthly income of the claimant can reasonably be fixed at Rs.8,000/-. The percentage of disability as 22% and multiplier adopted as 13 are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to Rs.2,74,560/- (Rs.8,000/- x 12 x 13 x 22%). Thus the claimant is entitled to only a compensation of Rs.2,74,560/- for the disability caused. 9. 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 realization for the compensation already awarded and also for the enhanced compensation. As regards the compensation awarded under other heads, we find the same to be reasonable and not excessive. 10. Therefore, the claimant is found entitled to only a compensation of Rs.3,52,692/- with interest @ 7.5% from the date of petition till retaliation. The appellant Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to MACA 2938/2008 6 the claimant. The award of the Tribunal is modified to the above extent. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn