IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 MACA.No. 720 of 2004() ---------------------- OPMV.323/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER IN M.V(OP): ---------------------------------------------- KOCHAPPAN, S/O. ANTHONY, KOLEKUNNIL HOUSE, INCHAKUNDU, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BALAKRISHNAN RESPONDENT(S): RESPONDENTS IN M.V(OP): -------------------------------------- 1. SIVAN, S/O. VELAYUDHAN, CHINNANGAN HOUSE, PUTHANOLY DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK. 2. P.I. IBRAHIM, S/O. BAVA, PALLICHANKUDY HOUSE, THRIKKAKARA, KAKKANAD, P.O. THENGODU. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., EDAPPALLY BRANCH, EBENEXER GARDEN, 1ST FLOOR, NEAR GOVT.H.S., EDAPPALLY, COCHIN. ADV. SRI.SAJU J.VALLYARA FOR R1 SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2010 ALONG WITH M.A.C.A.NO.722/04, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.720 & 722 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2010 JUDGMENT Barkath Ali, J. Both these appeals under Section 173 of Motor Vehicles Act arise out of a common award passed by the Motor Accidents Claims Tribunal, Irinjalakkuda dated March 10, 2003 in O.P.(MV) Nos.320/1998 and 323/1998. In M.A.C.A.No.720/04, the claimant challenges the judgment and award of the Tribunal in O.P.(MV) No.323/1998. In M.A.C.A.No.722/2004, the claimant challenges the judgment and award of the Tribunal in O.P.(MV)No.320/1998. 2. The facts leading to these appeals in brief are these : On May 7, 1997 at about 5.30 p.m., the claimant in O.P.(MV) No.323/1998 was riding his motor cycle along Kodali-Mupliyam public road . The claimant in O.P.(MV)No.320/1998 was pillion riding on the motor cycle. When they reached at Pathilkulangara, a lorry bearing Reg.No.KRK 4462 came at a high speed from the opposite side and dashed against the motor cycle of the claimants. Claimants MACA.Nos.720/04& 722/04 2 sustained serious injures. According to the claimants, the accident occurred due to the negligence of the driver of the lorry, the first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants. 3. First respondent, the driver of the offending lorry filed a written statement admitting the accident, but contended that the accident occurred due to the negligence on the part of the rider of the motor cycle. Second respondent, the owner of the offending lorry remained absent and was set ex parte by the Tribunal. The third respondent, the insurer of the offending lorry, filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the rider of the motor cycle. 4. Both these O.Ps. were jointly tried and a common award was passed by the Tribunal. Therefore, both these appeals are disposed of by a common judgment. Pws 1 to 4 were examined and Exts.A1 to A9 and Ext.X1 were marked on the side of the claimants before the Tribunal. Ext.B1 was marked on the side of the respondents. MACA.Nos.720/04& 722/04 3 On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 50,000/- in favour of the claimant in O.P.(MV)No.320/1998 and Rs. 35,000/- in favour of the claimant in O.P.(MV)No.323/1998 with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants 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 challenged in this appeal. Therefore the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 7. The claimant in O.P.(MV)No.323/1998 was examined as PW1 before the Tribunal. He sustained the following injuries as Ext.A7, the treatment-cum-discharge certificate. 1. Laceration right knee. 2. Open fracture lateral tibial plateau right knee. 8. The claimant is O.P.(MV)No.320/1998 was examined as MACA.Nos.720/04& 722/04 4 PW2 before the Tribunal. He sustained fracture of shaft of femur right as seen from Ext.A12, the treatment-cum-discharge certificate issued from the hospital. Open reduction and internal fixation were done. Ext.A13, the certificate of disability, shows that he has suffered a disability of 16%. The doctor who issued the certificates was examined as PW3. M.A.C.A.No.722/1998 9. In O.P.(MV)No.320/1998, the Tribunal awarded a total compensation of Rs. 50,000/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 9,000/- Transportation expenses - Rs. 1,500/- Medical expenses - Rs.13,500/- Bystanders expenses - Rs. 1,000/- Pain and suffering - Rs. 6,000/- Disability - Rs. 14,400/- Loss of amenities and enjoyment of life - Rs. 4,600/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused. 11. The Tribunal took the monthly income of the claimant as MACA.Nos.720/04& 722/04 5 Rs. 1500/- and took the multiplier of 16 and accepted the percentage of disability as 5% and awarded Rs. 14,400/- for the disability caused. Ext.A11, the certificate issued by the Orthopaedic Surgeon attached to St.James Hospital, Chalakudy and Ext.A13 disability certificate shows that the claimant as a permanent disability of 16%. But the Tribunal took the percentage as only 5%. Taking into consideration the nature of the injury sustained, we feel that the percentage of disability can be assessed at 8%. Claimant as PW2 testified that he was a Mason earning Rs.4,000/- per month. In the absence of any evidence regarding the income of the claimant, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. The multiplier adopted by the Tribunal as 16 is not seriously challenged. Thus for the disability caused, the claimant is entitled to a compensation of Rs. 30720/- ( 2,000x12x16x8%). Thus on this count, the claimant is entitled to an additional compensation of Rs.16,320/-. 12. The Tribunal awarded Rs. 9,000/- towards loss of earnings for six months @ Rs. 1500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,000/-, he is entitled to a compensation MACA.Nos.720/04& 722/04 6 of Rs. 12,000/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 3,000/-. M.A.C.A.No.720/1998 13. In O.P.(MV)No.323/1998, the Tribunal awarded a total compensation of Rs. 35,000/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 9,000/- Transportation expenses - Rs. 1,000/- Medical expenses - Rs. 8,200/- Bystanders expenses - Rs. 500/- Pain and suffering - Rs. 4,000/- Disability - Rs. 9,900/- Loss of amenities and enjoyment of life - Rs. 2,400/- 14. Counsel for the claimant sought enhancement of compensation for the disability caused. 15. The Tribunal took the monthly income of the claimant as Rs. 1500/- and took the multiplier of 11 and accepted the percentage of disability as 5% and awarded Rs. 9,900/- for the disability caused. Ext.A9, the disability certificate shows that the claimant suffered a permanent disability of 15%. But the Tribunal took the percentage of disability as only 5%. Taking into consideration the nature of the MACA.Nos.720/04& 722/04 7 injury sustained, we feel that the percentage of disability can be assessed at 8%. Claimant as PW1 testified that he was a Mason earning Rs.4,000/- per month. In the absence of any evidence regarding the income of the claimant, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. The multiplier adopted by the Tribunal as 11 is not seriously challenged. Thus for the disability caused, the claimant is entitled to a compensation of Rs. 21,120/- ( 2,000x12x11x8%). Thus on this count, the claimant is entitled to an additional compensation of Rs.11,220/-. 16. The Tribunal awarded Rs. 9,000/- towards loss of earnings for six months @ Rs. 1500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,000/-, he is entitled to a compensation of Rs. 12,000/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 3,000/-. 17. In the result, the appellant/claimant in M.A.C.A.No.720/1998 is entitled to an additional compensation of Rs. 14,220/- and appellant/claimant in M.A.C.A.No.722/2008 is entitled to an additional compensation of Rs.19,320/-. They are entitled MACA.Nos.720/04& 722/04 8 to interest @ 9% 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 before the Tribunal within two months from the date of receipt of the copy of this judgment. The award of Tribunal is modified to the above extent. The Appeals are disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.Nos.720/04& 722/04 9