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 17TH FEBRUARY 2010 / 28TH MAGHA 1931 MACA.No. 285 of 2005() ---------------------- OPMV.966/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONER: ----------------------------------- P.V. SAITHALAVI, S/O. VEERAN, PALLIPURATH HOUSE, THIRUMITTAKODE P.O., PATTAMBI, KOOTTANAD (VIA), PALAKKAD DIST. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): RESPONDENTS 1 TO 3: ---------------------------------- 1. SANKARANARAYANAN P.V., S/O. GOVINDA MENON, VIPIN NIVAS, MALA, KAKKATTIRI P.O., THRITHALA. 2. C.SANKARAN, S/O. MUKUNDAN, CHATHANMARIL HOUSE, KIZYAYUR P.O., PATTAMBI. 3. THE ORIENTAL INSURANCE COMPANY (P) LTD., PRANAVAM, MELEPATTAMBI, PATTAMBI. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.285 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.966/2002 of Motor Accidents Claims Tribunal, Ottappalam challenges the award of the Tribunal dated December 19, 2003 awarding a compensation of Rs. 70,000/- with interest @ 9 % per annum from the date of petition till realisation for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts in brief are these : On December 4, 2001 at about 12 P.M., while the claimant was standing on the side of Kulappully-Pattambi road at Ongallur, a tiller bearing Reg.No.KL 9J 4560 collided head on with a motor cycle bearing Reg.No.KL 10K 4652 just in front of the claimant, as a result of which claimant sustained serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the MACA.No.285/05 Page numbers drivers of both the vehicles . 3. Respondent 1 to 3 in the claim petition are the owner , driver and insurer of the tiller and respondents 4 to 6 are the owner, driver and insurer of the motor cycle involved in the accident. Respondents 1 and 2 owner and driver of the tiller and respondent 4 and 5, owner and driver of the motor cycle remained absent. Third respondent as well as the sixth respondent Insurers of the vehicles filed written statement admitting the policy. 4. PWs 1 and 2 were examined before the Tribunal and Exts.A1 to A8 were marked on the side of the claimant. No evidence was adduced by the contesting respondents 3 and 6 in the O.P. 5. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 70,000/- finding that the accident occurred due to the rash and negligent driving of the tiller by the second respondent. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. In this appeal, only respondents 1 to 3 before the Tribunal were shown as respondents 1 to 3 in the appeal. Though notice was MACA.No.285/05 Page numbers served on first respondent in this appeal, who was the owner of tiller, he remained absent. Notice against the second respondent, driver of the tiller, is dispensed with as third respondent, Insurance Company, has admitted the policy. 7. Heard learned counsel for the claimant and third respondent, Insurance company. 8. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the tiller by the second respondent is also not challenged in this appeal. Therefore, the only question arises for consideration is whether the claimant is entitled to any enhanced compensation ? 9. Counsel for the claimant confined his arguments only to the alleged inadequacy of the compensation awarded for the disability caused. The claimant sustained type III schatzker fracture of left tibial condyle, effusion of left knee, tenderness lateral tibial condyle. Ext.A2 is the copy of the wound certificate. Ext.A6 is the discharge summary issued from the West Fort Hospital, Thrissur. Ext.A7 disability certificate issued by the doctor shows that claimant has now MACA.No.285/05 Page numbers irregularity of the upper 4th of the left tibia and there is 15 degrees of angulation deformity of the left leg, instability of medial structure of the left knee joint. There was also wasting of the thigh and calf muscle and dulling of sensation noted on the lateral aspect of the leg and the foot. There is shortening of 1 cm on the left lower limb. The left knee flexion is only 90 degrees and there is extension lag of the left knee by 10 degrees, thickening and irregularity of the upper 4th of the fibula present indicating mal-united fracture of the upper 4th of fibula left. The doctor assessed his disability at 16%. 10. The Tribunal has taken his monthly income as Rs. 2000/- and assessed his disability as 7% and taking his age as 50, a multiplier of 11 was adopted and awarded a compensation of Rs. 18500/- for the disability caused. The claimant was an agriculturist, according to him. Therefore, we feel that his monthly income can be reasonably assessed at 2500/-. The multiplier adopted is not seriously challenged. As regards the percentage of disability assessed, we feel that 16% disability assessed by the doctor appears to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a MACA.No.285/05 Page numbers compensation of Rs. 52800/- ( 16% x 2500 x 12 x 11). Thus on this count, the claimant is entitled to an additional compensation of Rs. 34300/-. In all other aspects, the compensation awarded by the Tribunal appears to be reasonable. 11. In the result, the appellant/claimant is entitled to an additional compensation of Rs. 34,300/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate costs. The third respondent, Insurance Company, 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 as found above. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.285/05 Page numbers