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 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 MACA.No. 2003 of 2006() ----------------------- OPMV.1544/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT: ------------------------ MOHAN S/O.KRISHNAN, KALLIKKAL HOUSE, FERRY ROAD, KALAMASSERY. BY ADV. SRI.K.A.SHAMSUDEEN SRI.K.A.MANZOOR ALI RESPONDENT(S): --------------- 1. K.C.JOSEPH, KURUPPASSERY HOUSE, KALOOR, COCHIN-682017. 2. SRI.BIJU S/O VARGHESE, PAYIPARAMBIL HOUSE, THAIKKATTUKARA, ALAUVA. 3. M/S.NEW INDIA ASSURANCE CO.LTD., ERNAKULAM DIVISIONAL OFFICE, P.B.NO.245, 1ST FLOOR, KOTTAKKAL ARYA VYDYASALA- BUILDINGS, M.G.ROAD, COCHIN-16. ADV. SRI.M.RAJAGOPALAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2003 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of September, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1544/2001 on the file of Motor Accidents Claims Tribunal,Perumbavoor. He sustained the following injuries in a motor accident that occurred on April 28, 2001 at about 1.p.m. Lacerated wound over left knee with suspected fracture left patella, suspected fracture both bones left leg upper 1/3rd , small lacerated wound dorsum of left foot with swelling, contused abrasion right chest lateral aspect and anterior axillary fold. X-ray showed fracture of right ileum, comminuted fracture posterior aspect of left lateral humeral condyle, comminuted fracture tibial plateau, comminuted fracture proximal 3rd left tibia, chip fracture navicular and cubcid bones, fracture right ileum and comminuted fracture left patella. 2. The accident happened while the claimant was riding the motor cycle bearing Reg.No.KL-75-2776 from Kalamassery to Aluva and reached near Companypady, the auto rickshaw bearing MACA.No.2003/2006 2 Reg.No.KEE-1388 driven by the second respondent dashed against it. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 7,00,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending auto rickshaw remained absent before the Tribunal. The third respondent, the insurer of the offending auto rickshaw filed a written statement admitting the policy, but denied the liability. 4. Pws 1 to 4 were examined and Exts.A1 to A15 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of 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 auto rickshaw by second respondent and awarded a compensation of Rs. 3,37,200/- with interest @ 7% 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. 5. Heard the counsel for the appellant/claimant and the MACA.No.2003/2006 3 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 break up of the compensation awarded is as under : Loss of income - Rs. 36,000/- Transportation - Rs. 2,000/- Extra nourishment - Rs. 2,000/- Damage to clothing - Rs. 250/- Medical expenses - Rs.2,03,540/- Pain and suffering - Rs. 25,000/- Loss of amenities - Rs. 20,000/- Disfiguration - Rs. 5,000/- Future treatment - Rs. 5,000/- Disability - Rs. 38,400/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/-, took the percentage of disability as 10%, adopted a multiplier of 16 and awarded Rs. 38,400/- for the disability caused. MACA.No.2003/2006 4 According to the claimant, he was working in a private company as clerk and used to earn Rs. 4,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. The Tribunal took the percentage of disability as 10%. In Ext.A11, the disability certificate, the doctor certified the disability as 24%. In Ext.A11, the following disabilities were noted : 1. Loss of all movements of (L) knee due to bony ankylosis. 2. Limitation of (L) ankle movements - Dorsiflexion 15 , planter flexion 10 3. Limitation of ( L) subtalar movements- Inversion/Eversion - 5 4. Limitation of torso- metatarsal movements 5. Loss of muscle power ( L) leg ( grade III +) 6. Sensory defect over the anterior knee. 7. True shortening ( L) leg by 2 cm. 10. Taking into consideration the above disabilities noted in Ext.A11, we feel that the percentage of disability can be fixed at 18%. The multiplier adopted by the Tribunal as 16 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 103680/- ( 18% x 3000 x 12 x 16). MACA.No.2003/2006 5 Thus on this count, the claimant is entitled to an additional compensation of Rs.65,280/-. 11. The Tribunal awarded Rs.20,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 30,000/- would be reasonable on this count. 12. There is another aspect in this case. The Tribunal awarded Rs. 36,000/- towards loss of income for 18 months @ Rs. 2,000/- per month. As we have fixed the monthly income of the deceased as Rs. 3,000/-, he is entitled to a compensation of Rs. 54,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 18,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs. 93,280/-. He is entitled to interest @ 7% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall MACA.No.2003/2006 6 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.2003/2006 7