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 8TH JULY 2010 / 17TH ASHADHA 1932 MACA.No. 740 of 2004() ---------------------- OPMV.1586/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER IN M.V.O.P. ---------------------------------------------- SAJITH S/O. K.A.SREEDHARAN, KATHALIKKATTIL HOUSE, MUKUNDAPURAM TALUK, AVITTATHOOR, IRINJALAKUDA. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): RESPONDENTS IN M.V.O.P. -------------------------------------- 1. C.M.BABY SUCHITHRAKUMAR S/O. SUKUMARAN CITY TYRES, THALASSERY ROUND, THANA, KANNUR. 2. M.P.JAYATHILAK, S/O. KARUNAKARAN, 36/94, MADATHENIKANDIPEEDIKA KANDI, JAYAKRISHNA NIVAS, ELAYAVOOR AMMA, MELECHOWK DESOM, KANNUR -6. 3. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, P.B.NO.52, FORT ROAD, KANNUR. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.740 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1586/1995 of Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated May 30, 2003 awarding a compensation of Rs.68,000/- 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 : On February 3, 1994 at midnight, the claimant was driving the lorry bearing Reg.No.MCU 2426 along Kottakkal-Ramanattukara road. When he reached at Kottappuram, a bus bearing Reg.No.KL 13/7659 came from the opposite side and dashed against the lorry of the second respondent. Claimant as well as others travelling in the lorry sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending bus by second respondent. First respondent as the owner, second respondent as the MACA.No.740/2004 2 driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. 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 there was also negligence on the part of the claimant. 4. Pws 1 and 2 were examined and Exts.A1 to A12 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked. 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. 68,000/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. 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 counsel for the Insurance Company. MACA.No.740/2004 3 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.A4, copy of the wound certificate issued from Govt. Hospital, Thirurangadi. 1. Compound fracture both bones right leg. 2. Punctured wound on the middle of right leg. 3. Abrasions left leg and dorsum of left foot. 8. Ext.A3 is the treatment certificate issued from the hospital. Subsequently he was admitted at Aswini Hospital, Thrissur. Ext.A7 series are discharge cards issued from that hospital. Ext.A12, certificate of disability issued from Aswini Hospital, Thrissur shows that he has a permanent disability of 10%. Ext.A10 was issued by PW2. Claimant has now limitation to his movement of knee and wasting of leg and thigh muscles. 9. The Tribunal awarded a total compensation of Rs.68,000/-. MACA.No.740/2004 4 The break up of the compensation awarded is as under : Loss of earnings - Rs. 9,000/- Transportation expenses - Rs. 1,500/- Medical expenses - Rs.18,000/- Bystander expenses - Rs. 1,500/- Pain and suffering - Rs. 20,000/- Disability - Rs. 15,300/- Loss of amenities - Rs. 2,700/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused, for loss of amenities and enjoyment of life and for bystander expenses. 11. The Tribunal took the monthly income of the claimant as Rs.1,500/- and took the percentage of disability as 5% and adopted a multiplier of 17 and awarded Rs. 15,300/- for the disability caused. Claimant was a driver by profession. Ext.A11 is the copy of his driving licence. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. The percentage of disability as 5% and the multiplier as 17 taken by the Tribunal are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 20,400/- ( 5% x 2000 x 12 x 17). Thus on this count, the claimant is entitled to an additional MACA.No.740/2004 5 compensation of Rs.5,100/-. 12. For loss of amenities and enjoyment of life, the Tribunal granted a compensation of Rs.2700/- which appears to be very low. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 5,000/- would be reasonable for loss of amenities and enjoyment of life. Thus on this count, the claimant is entitled to an additional compensation of Rs.2,300/-. 13. The Tribunal awarded Rs. 1500/- towards bystander expenses. He was admitted in the hospital for 15 days. Subsequently, he was again admitted in the hospital for 22 days. During September 1995 also, he was admitted in the hospital for 25 days for removal of internal fixation. Therefore, towards bystander expenses, we feel that a compensation of Rs. 3,000/- would be reasonable. Thus on this count, the claimant is entitled to an additional compensation of Rs. 1,500/-. 14. There is another aspect in this case. 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 MACA.No.740/2004 6 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/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. In the result, the claimant is entitled to an additional compensation of Rs. 11,900/-. He 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.740/2004 7 MACA.No.740/2004 8 MACA.No.740/2004 9