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 7TH APRIL 2011 / 17TH CHAITHRA 1933 MACA.No. 2035 of 2006() ----------------------- OPMV.546/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): PETITIONERS ------------------------------------ ARUN, S/O.JOY, NEELIYARA HOUSE, VELATHUSSERY P.O. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): --------------- 1. RAJUMON @ SHAJI, S/O.SREEDHARAN, VALAVIMAKAL HOUSE, THALAPPALAM VILLAGE, NARIYANGANAM BHAGOM, MELUMBARA KARA. 2. KARAM SING KHATRA, 407/8 WING POWAI VIHAR COMPLEX, GREATER MUMBAI DIST., MAHARASHTRA. 3. THE NEW INDIA ASSURANCE CO.LTD., DO.NO.140600, FIT WELL HOUSE, LBS MARY, WIKHROLI WEST, MUMBAI. ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2035 OF 2006 - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.546 of 2003 on the file of the Motor Accidents Claims Tribunal, Pala. In this appeal, he challenges the judgment and award of the Tribunal dated June 21, 2006 awarding a compensation of ` 1,07,790/- 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 29, 2003 at about 8 P.M., near Puthenpally at Erattupetta. While the claimant was riding a motor cycle bearing Registration No.KL-5/M-3566 through Erattupetta - Vagamon Road and when he reached near Puthenpally at Erattupetta, he was knocked down by a Maruti van bearing Registration No.MH- 01/A-1386 driven by the first respondent. The claimant MACA No.2035 of 2006 2 sustained very serious injuries. Alleging negligence against the first respondent, the claimant filed O.P. before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of ` 2 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending Maruti van remained absent before the Tribunal. The third respondent insurer of the Maruti van filed a written statement admitting the policy of the offending vehicle, but attributed negligence to the claimant. 4. Exhibits A1 to A10 were marked on the side of the claimant. Exhibits B1 and B2 were marked on the side of the contesting third respondent before the Tribunal. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the first respondent and awarded a compensation of ` 1,07,790/- with interest at the rate of 7.5% per annum from the date of petition till realisation along with a cost of ` 2,175/-. The claimant has MACA No.2035 of 2006 3 now come up in appeal challenging quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the first respondent is not seriously challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries in the accident. (i) Fracture of tibia and fibula right leg, middle third, (ii) multiple lacerations on the right forearm and scalp and (iii) multiple abrasions right knee and leg. MACA No.2035 of 2006 4 8. The claimant suffered the following disabilities as revealed from Exhibit A9 certificate of disability issued from the Medical College Hospital, Kottayam: (1) Shortening of 1 1/2 cm. right leg (2) Moderate scarring on right forearm. (3) Restriction of movements of right ankle by terminal 15 degrees dorsiflexion and 15 degrees plantar flexion and movements of right knee terminal 20 degrees flexion restricted. (4) Union of fracture of right tibia with 10 degrees lateral angulation, right fibula with 15 degrees lateral angulation. 9. The Tribunal awarded a total compensation of ` 1,07,790/-. The break up of the compensation amount awarded is as under : MACA No.2035 of 2006 5 Part I Medical Expenses ` 45,400/- Loss of earnings ` 6,000/- Damages to clothing ` 250/- Transport to hospital ` 500/- Bystander expenses ` 750/- Extra nourishment ` 250/- Part II Pain and suffering ` 12,000/- Permanent partial disability ` 32,640/- Loss of amenities ` 10,000/- ---------------- Total ` 1,07,790/- =========== 10. Counsel for the claimant sought enhancement of compensation for the pain and suffering, for the loss of amenities and enjoyment of life and for the disability caused. 11. The Tribunal took the monthly income of the claimant as ` 2,000/-, took the percentage of disability as 8% as certified by the doctor in Exhibit A9 and adopted a multiplier of 17 as the claimant was aged 23 at the time of accident and awarded ` 32,640/- for the disability caused. MACA No.2035 of 2006 6 Exhibit A1 certificate shows that he was employed. Taking note of the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at ` 2,500/-. The percentage of disability taken by the Tribunal as 8% on the basis of Exhibit A9 disability certificate and the multiplier adopted as 17 are not seriously challenged in this appeal. Thus calculated, for the disability caused, the claimant is entitled to a compensation of ` 40,800/- (8% of ` 2,500 x 12 x17) Therefore, on this account, the claimant is entitled to an additional compensation of ` 8,160/-. 12. The Tribunal awarded ` 12,000/- for pain and suffering and ` 10,000/- for loss of amenities and enjoyment in life, which appear to be inadequate. Taking into consideration the nature of injuries sustained by the claimant, we feel that a compensation of ` 20,000/- for pain and suffering endured by the claimant and a compensation of ` 20,000/- for loss of amenities and enjoyment in life would be reasonable. MACA No.2035 of 2006 7 13. Thus, the claimant is found entitled to an additional compensation of ` 26,160/- with interest at the rate of 7.5% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment. 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 csl