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 17TH JUNE 2010 / 27TH JYAISTHA 1932 MACA.No. 204 of 2004() ---------------------- OPMV.201/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- P.K.ABDUL KHARIM, S/O.MOHAMMED, 52 YEARS, NAFEESA MANZIL, KALLISSERI CENTRAL, ANCHANPEEDIKA.P.O., KANNUR DISTRICT REP. BY POWER OF ATTORNEY HOLDER, M.P.NAFEESA, NAFEESA MANZIL, KALLISSERI CENTRAL, ANCHANPEEDIKA.P.O., KANNUR. BY ADV. SRI.T.K.KOSHY SMT.K.RAJESWARY SRI.HARIDAS THAIKKANDY RESPONDENT(S): RESPONDENTS -------------------------- 1. K.NAFEESA, W/O.HUNHAMMED HAJI, KANDETHU HOUSE, P.O.KANNAPURAM, KANNUR DISTRICT. 2. V.P.RAJESH KUMAR, S/O.C.T.KRISHNAN, VADAKKEPURAYIL, THAVAN.P.O., KANNUR DISTRICT. 3. THE MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, BROTHERS COMPLEX, THALASSERY ROAD, KANNUR. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.204 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th 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.201/1997 of Motor Accidents Claims Tribunal, Thalassery challenges the judgment and award of the Tribunal dated April 3, 2003 awarding a compensation of Rs.1,25,150/- 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 was employed in a Restaurant in Baharin and was earning Baharin's Dinar equivalent to Rs.20,000/- per month, according to him. On May 28,1996 at about 11.a.m., the claimant was pillion riding on a motor cycle from Payangadi to Kannur. When he reached at Puthiyakkavu, a limited stop bus bearing Reg.No.K.R.N. 5040 driven by the second respondent came at a high speed and dashed against the motor cycle of the claimant. The claimant sustained serious MACA.No.204/2004 2 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 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, but contended that there was also negligence on the part of the claimant. 4. This O.P. was jointly tried along with another O.P. filed by the rider of the motor cycle and a common award was passed. PWs 1 to 3 were examined and Exts.A1 to A16 and Exts.X1 and X2 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. 1,25,150/- with interest @ 9% per MACA.No.204/2004 3 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. 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 IIIB compound fracture of both bones of right leg and was operated and external fixation was applied. Skin grafting was also done as revealed from Ext.A14, the certificate of disability, Ext.A15, the wound certificate and Ext.X2, his case sheet. There is extensive scaring of right leg with stiffness of right knee. He has now a permanent disability of 30%. 8. The Tribunal awarded a total compensation of Rs.1,25,150/-. The break up of the compensation awarded is as under : MACA.No.204/2004 4 Transportation - Rs. 3,000/- Bystanders expenses - Rs.10,650/- Extra nourishment - Rs. 2,000/- Loss of earnings - Rs. 15,000/- Pain and suffering - Rs. 15,000/- Treatment expenses - Rs. 40,250/- Disability - Rs. 29,250/- Loss of amenities and enjoyment of life - Rs. 10,000/- 9. Counsel for the claimant sought enhancement of compensation for the pain and suffering endured, for the disability caused, for medical expenses and for loss of amenities and enjoyment of life. 10. The Tribunal took the monthly income of the claimant as Rs.1,250/- and adopted a multiplier of 13 and took the percentage of disability as 15% and awarded Rs.29,250/- for the disability caused. According to the claimant, he was employed abroad and earning Rs. 20,000/- per month. He produced copy of the passport Ext.A16. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,000/-. The multiplier adopted by the Tribunal as 13 is not seriously challenged. Ext.A4, the certificate of disability shows that he has suffered a MACA.No.204/2004 5 permanent disability of 30% as he has stiffness of right knee. Taking into consideration the above aspect, we feel that his disability can be reasonably fixed at 20%. Thus calculated for the disability caused, claimant is entitled to a compensation of Rs. 93,600/- ( 20% x 3000 x 12x 13). Thus on this count, the claimant is entitled to an additional compensation of Rs. 64,350/-. 11. The Tribunal awarded a compensation of Rs. 3,000/- towards transportation expenses. Taking into consideration the fact that the claimant spent considerable amount for going to the hospital, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. 12. The Tribunal awarded Rs. 40,250/- for treatment expenses. The claimant has produced Ext.A5 series and Ext.A12 series medical bills. Taking into consideration the above medical bills and the nature of the injury sustained, we feel that a compensation of Rs. 50,000/- would be reasonable on this count. 13. The Tribunal awarded Rs. 15,000/- for the pain and suffering endured by the claimant. Taking into account the nature of MACA.No.204/2004 6 the injury sustained, we feel that a compensation of Rs. 20,000/- would be reasonable for the pain and suffering endured by the claimant. 14. The Tribunal awarded Rs. 15,000/- for loss of earnings @ Rs. 1250/- per month for one year. As we have fixed the monthly income of the claimant as Rs. 3,000/-, he is entitled to a compensation of Rs. 36,000/- towards loss of earnings. 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. 1,07,100/-. 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. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.204/2004 7 MACA.No.204/2004 8 MACA.No.204/2004 9