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 28TH JUNE 2010 / 7TH ASHADHA 1932 MACA.No. 1051 of 2004() ----------------------- OP(MV) 321/1998 OF THE MACT, IRINJALAKUDA. APPELLANT/PETITIONER: ----------------------------------- BASHEER, S/O. LATE MOHAMMED ALI, RESIDING AT THANATHUPARAMBIL HOUSE, P.O. PUTHENCHIRA, PINDANI, THRISSUR DISTRICT.(DIED) LEGALHEIRS OF THE DECEASED APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 2 TO 6 AS PER ORDER DT. 4.10.2010 IN IA 2014/2010. SUPPL.A2. ALEEMA, MOTHER OF LATE BASHEER. 3. JASMINE BASHEER, WIDOW OF BASHEER. 4. JAMSHEERSHA T.M. (MINOR) S/O. LATE BASHEER. 5. ASLAM T.M. (MINOR), S/O. LATE BASHEER. 6. JASEERSHA T.B. (MINOR), D/O. LATE BASHEER (MINOR APPELLANTS 4 TO 6 ARE REPRESENTED BY THEIR GUARDIAN MOTHER THE 3rd APPELLANT HEREIN). ALL ARE RESIDING AT THANATHUPARAMBIL HOUSE, P.O. PUTHENCHIRA, PINDANI, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH RESPONDENT(S): RESPONDENTS: --------------------------- 1. U.CHANDRASEKHARAN, RESIDING AT UNNIPARAMBIL HOUSE, P.O. VELLANGALLUR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. BABU @ JOSE, S/O. ADAM, RESIDING AT ANTHIKADAN HOUSE, NEAR NEDUPUZHA RAILWAY GATE, KANIMANGALAM VILLAGE, THRISSUR DISTRICT. 3. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, TANA, IRINJALAKUDA. ADV. SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.1051 of 2004 ------------------------------------------------------ Dated: JUNE 28, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV)321/1998 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, challenges the judgment and award of the Tribunal, dated, July 16, 2003 awarding a compensation of Rs.60,000/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was employed as a driver in Saudi Arabia and was aged 30 at the time of the accident. On November 18, 1997 at about 10.15 a.m. the claimant was riding a motorcycle bearing registration No.KL- 8/9030 along Irinjalakuda - Kodungallur public road. When they reached at Kozhikada near Pullut, a bus bearing registration No.KL- 8/A 4797 came from the opposite side and dashed against the motorcycle of the claimant. The claimant sustained serious injuries. According to the claimant the accident occurred due to the rash and negligent driving of the bus by the 2nd respondent. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending bus are jointly and M.A.C.A.1051 of 2004 2 severally liable to pay compensation to the claimant. He claimed a compensation of Rs.3 lakhs. 3. Respondent No.2 as the driver of the offending bus, remained absent before the Tribunal. The 1st respondent as the owner and the 3rd respondent as the insurer of the offending bus, filed separate written statements admitting the accident and the policy and they further contended that the accident occurred due to the negligence on the part of the rider of the motorcycle. 4. This O.P. was jointly tried along with O.P.(MV) 293/1998 filed by the pillion rider of the motorcycle and a common award was passed. 5. PWs.1 and 2 were examined and Exts.A1 to A17, X1 and X2 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents before the Tribunal. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.60,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate costs. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellant/claimant and the M.A.C.A.1051 of 2004 3 counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 8. The claimant sustained the following injuries as revealed from Ext.A10, copy of the wound certificate, and Ext.A11 discharge summary issued from the hospital:- “1. Crush injury right foot. 2. compound fracture and dislocation of cuniform. 3. fracture, 2nd, 3rd metatarsal.” Ext.X2 is the case sheet of the claimant issued from the Modern Hospital, Kodungallur. Ext.A16 certificate of disability issued by PW.2 Orthopedic Surgeon attached to West Fort Hospital, Thrissur as the hip was replaced and the supra condylar fracture was malunited, shows that he has a disability of 25%. 9. The Tribunal awarded a total compensation of Rs.60,000/-. The break up of the compensation awarded is as under:- loss of earnings for 6 months - Rs.12,000/- transportation - 2,000/- medical expenses - 19,300/- M.A.C.A.1051 of 2004 4 bystander's expenses - 500/- permanent disability - 5,000/- pain and suffering - 12,000/- loss of amenities etc. - 9,200/- 10. The Counsel for the appellant/claimant sought enhancement of the compensation awarded for the disability caused. The Tribunal took the monthly income of the claimant as Rs.2000/- and awarded Rs.5000/- for the permanent disability caused. Taking into consideration the nature of the injuries sustained and the disability caused to the claimant, we feel that the above compensation awarded for the disability caused appears to be very low. According to the claimant, he was working as a driver in Saudi Arabia earning Rs.18,000/- per month. Ext.A15 is his driving licence. Ext.A9 is the copy of his passport. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs.3000/-. The Tribunal took the percentage of disability as 10% which appears to be reasonable. The claimant was aged 30 at the time of the accident. Therefore 17 would be the proper multiplier. Thus calculated, for the disability caused, the claimant is entitled to a compensation of Rs.61,200/- (3000 x 12 x 17 x 10%). As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. M.A.C.A.1051 of 2004 5 11. Thus the claimant is entitled to an additional compensation of Rs.56,200/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 3rd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal 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 mt/-