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 12TH JULY 2010 / 21ST ASHADHA 1932 MACA.No. 2152 of 2008() ----------------------- OP(MV).470/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT : PETITIONER ------------------------ SHIBU, S/O.VELAYUDHAN, KARIPPATHARA HOUSE, PUSHPAGIRI DESOM, MELOOR VILLAGE, KUNNAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS : RESPONDENTS 1 TO 3 IN OP(MV) ------------------------------------------- 1. JOHN MATHACHAN, ACHADAN HOUSE, KONNAKKUZHY P.O. * 2. BABU, S/O.SUDHAKARAN, MAMBRA HOUSE, PUSHPAGIRI P.O (DELETED) 3. MANAGER, UNITED INDIA INSURANCE CO.LTD., CHALAKUDY. * THE SECOND RESPONDENT IS DELETD FROM THE PARTY ARRAY LIST AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 28.5.10 IN IA.NO.1205/10 AT THE RISK OF THE APPELLANT. R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2152 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 12th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.470 of 2001 of the Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated May 15, 2008, awarding a compensation of Rs.1,41,500/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 30 at the time of the accident and as a Toddy Tapper, he used to earn Rs.5,000/- per month, according to him. On October 28, 2000 the claimant was pillion riding on the motor cycle bearing registration No.KL.8/G 274. When he reached at Ayyampuzha, the motor cycle dashed against a tempo van bearing registration No. MACA 2152/2008 2 KRQ 874, driven by the 5th respondent. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the negligence of on the part of the second respondent, rider of offending motor cycle. The first respondent as the owner, the second respondent as the rider and third respondent as the insurer of the offending motor cycle are jointly and severely liable to pay the compensation to the claimant. Owner and driver of the tempo van were impleaded subsequently as respondents 4 and 5. 3. Respondents 1, 2, 4 and 5 remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending motor cycle, filed a written statement, admitting the policy and further contended that the accident occurred due to negligence of the fifth respondent. . 4. Exts. A1 to A7 were marked on the side of the claimant and Exts.B1 and B2 were marked on the side of the respondents. The Tribunal, on an appreciation of the MACA 2152/2008 3 evidence, found that the accident occurred due to the negligence on the part of the second respondent and awarded a compensation of Rs.1,41,500/- with interest at the rate of 7% p.a. from the date of petition till realization. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal and also against the finding of the Tribunal exonerating the Insurance Company. 5. Heard the learned counsel for the claimant and learned 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 second respondent, rider of the offending motor cycle 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 following points arise for consideration:- 1) Whether the finding of the Tribunal exonerating the third respondent Insurance MACA 2152/2008 4 Company on the ground that the policy of the motor cycle does not cover the risk of the pillion rider can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 8. The learned counsel for the third respondent Insurance Company fairly conceded that the insurance policy of the motor cycle involved in the accident is a package policy. Therefore, risk of the pillion rider is also covered by such an insurance policy. That being so, we hold that the third respondent is bound to pay the entire compensation awarded by the Tribunal. 9. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 10. The claimant sustained the following injuries, as revealed from Ext.A3 copy of the wound certificate issued from St.James Hospital, Chalakudy:- 1) Abrasions over the right side of face and the right forearm and left knee. MACA 2152/2008 5 2) 4 x 2 cm. laceration below the right knee exposing the bone. X-ray showed fracture of right patella and fracture of the distal third of right femur. Ext.A4 discharge summary showed that he was in the hospital as inpatient for a total period of 62 days.Ext.A6 certificate of disability issued by the doctor shoed that the claimant has a permanent disability of 36%. He was seen by the Tribunal and found that the claimant does not have the right patella, that his right leg was totally disfigured with some shortening and that he was not able to bend his knee. 11. The Tribunal awarded a total compensation of Rs.1,41,500/-. Break up of the compensation awarded is as under:- Disability caused : Rs. 60,500/- Medical expenses : Rs. 39,800/- Transportation expenses : Rs. 2,000/- For 62 days in the hospital : Rs. 6,200/- (including by-stander’s expenses. Loss of earnings : Rs. 8,000/- Pain and suffering : Rs. 20,000/- Loss of amenities : Rs. 5,000/- and discomfort. MACA 2152/2008 6 ------------------ Total : Rs.1,41,500/- ======= 12. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused and loss of amenities and enjoyment in life. 13. The Tribunal took annual income of the claimant as Rs.2,00/-, took disability at 14%, adopted a multiplier of 18 and awarded a compensation of Rs.60,500/- for the disability caused. Taking into consideration, the claimant was a Toddy Tapper, aged 30 at the time of the accident, we feel that his monthly income can reasonable be fixed at Rs.3,000/-. Multiplier adopted by the Tribunal as 18 and percentage of disability 14% appear to be reasonable. Thus, for the disability caused, the claimant is entitled to a compensation of Rs..90,720/- (Rs.3,000/- x 12 x 18 x 14%). Thus, on this count, the claimant is entitled to an additional amount of Rs.30,220/-. 14. The Tribunal awarded Rs.8,000/- for loss of earnings i.e., for four months @ Rs.2,000/- per month. As we MACA 2152/2008 7 have found that his monthly income can be fixed at Rs.3,000/-, the claimant is entitled to a compensation of Rs.12,000/- for the loss of earnings. Thus, the claimant is entitled to an additional compensation Rs.4,000/- on this count. 15. The Tribunal awarded Rs.5,000/- for the loss of amenities and enjoyment in life, which appears to be very low. Taking into consideration the nature of the injuries sustained, we feel that Rs.20,000/- would be reasonable on this count. Thus, on this count, the claimant is entitled to an additional compensation of Rs.15,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 16. In the result, the claimant is found entitled to an additional compensation of Rs.49,220/-. He is entitled to interest @ 7% from the date of petition till realization. The third respondent being the insurer of the offending motor cycle shall deposit the amount within two months from the MACA 2152/2008 8 date of receipt of a copy of this judgment with notice to the claimant. 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. mn