IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 MACA.No. 716 of 2008() ---------------------- OPMV.1004/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER: --------------------------------------------- NARAYANAN, S/O.RAMAN, KALLAMPARAMBIL HOUSE, KAPRASSERY, NEDUMPASSERY P.O., ALUVA. BY ADV. SRI.K.A.SEBASTIAN RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. SURENDRA KAMMATH.K., V/923, THENMALA, KOCHI-2. 2. JOY, S/O.PORINJU, PARASSERY VEETTIL, ALAMATTOM, THRIMUKULAM, MALA. 3. UNITED INDIA INSURANCE COMPANY LTD., MTPC CELL, REGIONAL OFFICE, VETTUKATTIL BUILDINGS, JOSE JUNCTION, M.G.ROAD, ERNAKULAM. 4. THE ORIENTAL INSURANCE COMPANY LTD., MTPC CELL, REGIONAL OFFICE, ERNAKULAM. 5. ADDL. R5: ARAVINDAKSHAN, SREENILAYAM, THIRUTHE, THIRUMUKULAM, MALA. R3 BY ADV.SRI.RAJESH THOMAS R4 BYADV.SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 716 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 11th 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.1004 of 2000 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated June 25, 2007 awarding a compensation of Rs.1,66,044/- 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 aged 48 at the time of the accident and used to earn Rs.5,000/- per month as a Mason. On December 10, 1999 at 6 p.m. the claimant was riding his motor cycle bearing registration No.KL-7/C-5766, along with one Asokan as a pillion rider, along the National Highway. When they reached near Desom near Alwaye, a car bearing registration No.KL-8/C-8605, driven by the MACA 716/2008 2 second respondent, came at a high speed and dashed against the motor cycle of the claimant. The claimant as well as the pillion rider sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending car by the second respondent. First respondent as the owner, second respondent as the diver and third respondent as the insurer of the offending car are jointly and severally liable to pay compensation to the claimant. Fourth respondent who is the insurer of the motor cycle was subsequently impleaded. Fifth respondent is the registered owner of the car. 3. Respondents 1 and 2, the owner and driver of the offending car remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending ca filed a written statement, admitting the policy and further contended that the registered owner of the car is another person. Additional fourth respondent has filed a written statement, admitting the policy and contended that the accident occurred due to negligence of the second MACA 716/2008 3 respondent. The additional fifth respondent filed a written statement, admitting the ownership of the car. 4. Exts.A1 to A10 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the respondents. The Tribunal, on an appreciation of evidence, awarded a compensation of Rs.1,66,044/- with interest at 7.5% p.a. from the date of petition till realization. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard learned counsel for the appellant and learned counsel for respondents 3 and 4. 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.A8 copy of the wound certificate issued MACA 716/2008 4 from the hospital, X-ray and C.T.scan:- 1) Multiple abrasion on the right side of forehead. 2) Lacerated wound right eyebrow. 3) Abrasions on the right ear, right shoulder, dorsum of left hand, right hand and right knee. 4) Lacerated wound on the right leg at lower third and right knee. 5) Black eye - right. 6) Fracture of both bones of right leg and right patella. 7) Fractures of frontal bone, cribriform plate, roof and lateral wall of right orbit. There was thin extradural haematoma on right temporal convixity and bleed with right lateral ventricle. Ext.A7 series are discharge cards issued from the hospital. Ext.A10 is the certificate of disability issued by the Medical Board, which shows that the claimant has 39% permanent physical disability and 28% orthopaedic disability and 11% neuro- logic disability. 8. The Tribunal awarded a total compensation of MACA 716/2008 5 Rs.1,66,044/-. Break up of the amount awarded is as under :- Medical expenses : Rs. 57,164/- Transportation expense : Rs. 2,000/- and damage to cloth. Attendant expenses : Rs. 4,000/- Extra-nourishment : Rs. 3,000/- Shock, pain and sufferings : Rs. 20,000/- Loss of permanent disability : Rs. 74,880/- Loss of amenities and : Rs. 5,000/- convenience. -------------------- Total : Rs.1,66,044/- ======== 9. The learned counsel for appellant sought enhancement of compensation towards the disability caused and for loss of amenities and enjoyment in life. 10. The Tribunal took the monthly income of the claimant as Rs.2,000/-, adopted a multiplier of 8, as the claimant was aged 48 at the time of the accident, and took the percentage of disability as 39%, as shown in Ext.A10, and awarded Rs.74,880/- for the disability caused. According to the claimant, he was a Mason and used to earn Rs.5,000/- per month. Taking into consideration this aspect, we feel that his monthly income can reasonably be MACA 716/2008 6 estimated at Rs.2,500/-. The percentage of disability taken by the Tribunal as 39% and multiplier adopted by the Tribunal as 8 are not seriously challenged. Thus, for the disability caused, the claimant is entitled to a compensation of Rs.93,600/- (Rs.2,500/- x 12 x 8 x 39%). Thus, on this count, the claimant is entitled to an additional compensation of Rs.18,720/-. 11. The Tribunal awarded a compensation of Rs.5,000/- for loss of amenities and for the inconvenience caused, which appears to be very low. Having regard to the nature of the injuries sustained, we feel that a compensation of Rs.10,000/- would be reasonable on this count. 12. There is another aspect in this case. The Tribunal did not award any amount for loss of earnings. The nature of the injuries sustained by the claimant shows that he must have been laid up for four months. As we have fixed monthly income of the claimant as Rs.2,500/-, the claimant is entitled to a compensation of Rs.10,000/- for loss of earnings for MACA 716/2008 7 four months. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs.33,720/-. He is entitled to interest @ 7.5 % per annum from the date of petition till realization and proportionate cost. The third respondent being the insurer of the offending car shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn.