IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 MACA.No. 962 of 2009() ---------------------- OPMV.1456/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONER ------------------------ K.P.ABOOBACKER,AGED 48 YEARS, S/O.MARAKAR HAJI,KUNNATHU PALLIYALIL HOUSE, VADANAMKURUSSI,SHORNUR VIA,PALAKKAD DISTRICT. BY ADV. SMT.M.SINDHU THANKAM SMT.O.H.NAZEEBA RESPONDENT(S): RESPONDENTS -------------------------- 1. K.T.UMMER,S/O.SAIDALAVI,AGED NOT KNOWN, KOORIYATTUTHODI HOUSE,MELE PATTAMBI, (R.C.OWNER OF KL-9 M-3636 NUMBERED TEMPO VAN) 2. K.T.HAMSA,AGED 31 YEARS,S/O.ALAVIKUTTY, KARIMPANATHOTTATHIL HOUSE,VANIYAMKULAM, PALAKKAD DISTRICT. (DRIVER OF KL-9 M-3636 NUMBERED TEMPO VAN)( DELETED) 3. NATIONAL INSURANCE CO.LTD., 3RD FLOOR,EAST FORT COMPLEX, FORT MAIDAN,PALAKAD. RESPONDENT NO.2 DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 23-2-2011 ON I.A.NO.501/2011. ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.962 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1456/2005 on the file of Motor Accidents Claims Tribunal, Ottapalam In this appeal he challenges the judgment and award of the Tribunal dated January 5, 2009 awarding a compensation of Rs.1,36,250/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on November 7, 2005 at about 8 a.m.: Extensive lacerated wound occipital scalp, crush injury left pinna and fracture right humerus. Diagnosis revealed contaminated lacerated wound ( L) ear and occipital scalp, comminuted fracture right humerus shaft, fracture right 5th metacarpal and soft tissue injury right thigh with haematoma. 2. The accident happened while the claimant was riding his motor cycle bearing Reg.No.KL 8L-8218 along Kulappully-Pattambi Public road. When he reached near Village office, Vadanamkurussi, he MACA.No.962/2009 2 was knocked down by a tempo van bearing Reg.No.KL 9M-3636 driven by the second respondent. 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. 2,28,500/-. 3. Respondents 1 and 2, the owner and the driver of the offending tempo van remained absent before the Tribunal. The third respondent, the insurer of the offending tempo van filed a written statement admitting the policy. 4. PW1 was examined and Exts.A1 to A11 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 tempo van by second respondent and awarded a compensation of Rs. 1,36,250/- with interest @ 7% per annum from the date of petition till realisation and a cost of Rs.1500/-. 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.962/2009 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 Tribunal awarded a total compensation of Rs.1,36,250/-. The break up of the compensation amount awarded is as under: Disability - Rs. 39,000/- Medical bills - Rs. 60,500/- Bystander exp. - Rs. 3,750/- Transportation, extra nourishment and damage to clothing - Rs. 3,000/- Pain and suffering - Rs. 20,000/- Loss of income - Rs. 10,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and for pain and suffering endured. He pointed out that no compensation was awarded for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as MACA.No.962/2009 4 Rs.2,500/- and took the percentage of disability as 10% and adopted a multiplier of 13 as the claimant was aged 48 and awarded Rs. 39,000/- for the disability caused. According to the claimant, he was an agriculturist earning 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.3,250/-. The percentage of disability as 10% taken by the Tribunal appears reasonable. The multiplier of 13 adopted by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 50,700/- ( 10% x 3250 x 12 x 13). Thus on this count, the claimant is entitled to an additional compensation of Rs.11,700/-. 10. No compensation is seen awarded for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensated of Rs. 15,000/- would be reasonable on this count. 11. The Tribunal awarded Rs.20,000/- for pain and suffering endured. Having regard to the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.25,000/- would be reasonable on this count. MACA.No.962/2009 5 12. There is another aspect in this case. The Tribunal awarded Rs. 10,000/- towards loss of income for 4 months @ Rs. 2,500/- per month. As we have fixed the monthly income of the claimant as Rs. 3,250/-, he is entitled to a compensation of Rs. 13,000/- towards loss of income. 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 we are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs.34,700/-. 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 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.962/2009 6 MACA.No.962/2009 7