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 9TH JUNE 2010 / 19TH JYAISTHA 1932 MACA.No. 359 of 2004(G) ----------------------- OPMV.317/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANT/APPLICANT --------------------------------- BHAGEERATHI W/O. MURALEEDHARAN PILLAI, DURGA PRASADAM, BAPUJI NAGAR, PONGUMOODU, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. VIJAYAN, NISHA BHAVAN, HOUSE NO.407/III, VAMANAPURAM P.O., THIRUVANANTHAPURAM. 2. ANIL KUMAR S/O. VISWAMBHARAN, KUNNUMPURATHU VEEDU, ANACHAL, KALAMACHAL P.O. 3. M/S. ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE NO.II, ST.MARY VILLA, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.359 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.317/2000 of Motor Accidents Claims Tribunal, Thiruvananthapuram challenges the judgment and award of the Tribunal dated January 14, 2003 awarding a compensation of Rs. 44,880/- for the loss caused to him 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 is a lady aged 38 and earning Rs.5,000/- per month from garment making. On September 7, 1999, she was travelling in the bus bearing Reg.No.KL-01 L 6426 driven by the second respondent from Thiruvananthapuram to Kottarakkara. Due to the rash and negligent driving of the offending bus by second respondent, the bus capsized as a result of which claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and MACA.No.359/2004 2 negligent driving of the offending bus by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 3 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending bus filed a written statement admitting the policy and further contended that claimant was not a passenger of the said bus as alleged by her. 4. Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by second respondent and awarded a compensation of Rs. 44,880/- with interest @ 9% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.359/2004 3 5. Heard the counsel for the appellant/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 on the part of the second 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. 7. The claimant sustained the following injuries as revealed from Ext.A2, the copy of the wound certificate, Ext.A3, discharge summary issued from the hospital, Ext.A4 Scan report and Ext.A5 Medical certificate. Cervical spine injury with central code syndrome, postero central herniation of O3-C4, O5-6 and O6-7 inter vertibral discs which along with posterior osteophytes at O5 and O5 vertibral bodies causing significat compression on the cervical cord and focal myelomalacia at O5-6 disc level. MRI study revealed in the spinal canal MACA.No.359/2004 4 diameter at above disclevels O7, O6 and O6m respectively. 8. She was admitted in the hospital on 7/9/1999 and was discharged on 26/9/1999. She was readmitted on 5/10/1999 and was discharged on 8/10/99. According to the claimant, now she has tingling feeling over hands and neck pain and there is loss of hearing power. 9. The Tribunal awarded a total compensation of Rs.44,880/-. The break up of the compensation awarded is as under : Pain and suffering - Rs. 12, 000/- Loss of earnings - Rs. 3,600/- Treatment expenses - Rs. 3,000/- Transportation charge - Rs. 1,000/- Disability - Rs. 17,280/- Loss of amenities and enjoyment of life - Rs. 8,000/- 10. Counsel for the claimant sought enhancement of the compensation for the disability caused and on other counts. 11. The Tribunal took the monthly income of the claimant as Rs. 1800/- and took the percentage of disability as 5% and adopted a multiplier of 16 and awarded a compensation of Rs. 17,280/- for the MACA.No.359/2004 5 disability caused. Claimant was a garment maker, according to him. She was a member of Kerala Artisans and Skilled Workers Welfare Scheme. Taking into consideration this aspect, we feel that her monthly income can be reasonably assessed at Rs.2,250/-. The percentage of disability assessed by the Tribunal and the multiplier adopted as 16 are not seriously challenged in this appeal. Thus calculated for the disability caused, claimant is entitled to a compensation of Rs. 21,600/- ( 5% x 2250 x 12 x16). Thus on this count, the claimant is entitled to an additional compensation of Rs.4,320/-. 12. There is another aspect in this case. The Tribunal awarded a compensation of Rs. 3,600/- towards loss of earnings for two months @ Rs. 1800/- per month. The injury sustained by the claimant shows that she must have been disabled for three months. As we have fixed the monthly income of the claimant as Rs. 2250/-, she is entitled to a compensation of Rs. 6750/- towards loss of earnings. Thus, for loss of earnings, the claimant is entitled to an additional compensation of Rs.3,150/-. As regards the compensation awarded under other heads, MACA.No.359/2004 6 we find the same to be reasonable and therefore are not disturbing the same. In the result, the claimant is found entitled to an additional compensation of Rs. 7,470/-. She is entitled 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 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 sv. MACA.No.359/2004 7