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 9TH JULY 2010 / 18TH ASHADHA 1932 MACA.No. 151 of 2005() ---------------------- OPMV.929/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANT/PETITIONER; ----------------------------------- SEBASTIAN, S/O.ANTONY, HOUSE NO.2/414, CHAMPARAMBIL VEEDU, NENMARA P.O.CHITTUR TALUK. BY ADV. SRI.C.RAGHAVAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. A.RAMESH, S/O.GOPALAN, PALAYAMANGALAM, AYILOOR P.O. AYILOOR VILLAGE,CHITTUR TALUK. 2. RAVEENDRAN, S/O.NARAYANAN, PUTHIYAPARAMBIL VEEDU, MANDUPARAMBIL, MALAPPURAM. 3. ORIENTAL INSURANCE CO.LTD., MALAPPURAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/07/2010 ALONG WITH MACA NO. 163 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.151 & 163 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010 JUDGMENT Barkath Ali, J. Both these appeals under Section 173 of Motor Vehicles Act arise out of a common award passed by the Motor Accidents Claims Tribunal, Palakkad in O.P.(MV)Nos.929/1995 and 930/1995. The claimant in O.P.(MV)No.929/1995 is the appellant in M.A.C.A.No.151/2005. The claimant in O.P.(MV)No.930/1995 is the appellant in M.A.C.A.No.163/2005. 2. The facts leading to these appeals in brief are these : The claimant in O.P.(MV)No.929/1995 was aged 29 at the time of the accident and was employed as a fitter ( Mechanic) and earning Rs. 3,000/- per month, according to him. The claimant in O.P.(MV) No.930/1995 was aged 32 at the time of the accident and was employed as a brick making worker earning Rs. 100/- per day, according to him. On March 13, 1995 at about 6.30 p.m., the claimant in O.P.(MV) No.929/1995 was riding the motor cycle bearing Reg.No.KLG 2636 from Ayiloor to Palayamangalam. The claimant in O.P.(MV) MACA.No.151 & 163 of 2005 2 No.930/1995 was pillion riding on the motor cycle. When they reached near Karinkulam, Adiperanda, a jeep bearing Reg.No.KL 10/ C 4491 driven by the first respondent came at a high speed from the opposite side and dashed against the motor cycle. The claimants sustained grievous injuries. According to them, the accident occurred due to the negligence on the part of the first respondent, the driver of the jeep. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimants. 3. In O.P.(MV)No.930/1995, the rider , the owner and insurer of the motor cycle were subsequently impleaded as supplemental respondents 4 to 6. This supplemental fourth respondent is the claimant in O.P.(MV)No.929/1995. Respondents 1 and 2, the driver and the owner of the offending jeep remained absent in both these O.Ps. The third respondent, the insurer of the offending jeep filed a written statement admitting the policy, but contended that the accident occurred due to the negligence of the rider of the motor cycle i.e. the claimant in O.P.(MV)No.929/1995. In O.P.(MV)No.930/1995, MACA.No.151 & 163 of 2005 3 respondents 4 and 5, the rider and owner of the motor cycle remained absent. The third respondent, the insurer of the motor cycle filed a written statement admitting the policy and further contended that the accident occurred due to the negligence of the first respondent. 4. Both these O.Ps. were jointly tried along with O.P.(MV) No.928/1995, the claim petition filed by one of the pillion riders of the motor cycle and a common award was passed. Pws 1 to 3 were examined and Exts.A1 to A24 were marked on the side of the claimants. On the side of the contesting respondents, RW1 was examined and Exts.B1 to B7 were marked. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 32,100/- to the claimant in O.P.(MV)No.929/1995 and Rs. 59,700/- to the claimant in O.P.(MV)No.930/1995 with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellants/claimants and the counsel for the Insurance Companies. MACA.No.151 & 163 of 2005 4 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the driver of the jeep and the rider of the motor cycle involved in the accident is not challenged in these appeals. Therefore, the only question which arises for consideration is whether the appellants/claimants are entitled to any enhanced compensation. M.A.C.A.No.151/2005 7. Claimant in O.P.(MV)No.929/1995 has claimed compensation under Section 163 A of the Motor Vehicles Act. Therefore, the question of negligence does not arise in this case. He sustained the following injuries as revealed from Ext.A3, copy of the wound certificate issued from Medical College Hospital, Thrissur : 1. Lacerated wound 3 x 2 cm. on right chin of tibia 2. Lacerated wound on posterior aspect of leg 3 x 2 cm. skin deep. 3. Compound fracture tibia right and compound fracture fibula. 8. Ext.A6 is the copy of the reference card issued to the claimant from Medical College Hospital, Thrissur. He was in the hospital from March 13, 1995 to March 30, 1995. Ext.A7 is the copy MACA.No.151 & 163 of 2005 5 of the case sheet. Ext.A8 is the treatment certificate issued from the hospital which shows that he was treated with wound debridment and external fixation of fracture. Ext.A12 is the disability certificate issued by Bone Specialist of District Hospital to the effect that he has a permanent disability of 12%. 9. The Tribunal assessed a total compensation of Rs.64,200/-/ . The break up of the compensation assessed is as under : Loss of earnings - Rs. 13,500/- Transport to hospital - Rs. 2,000/- Extra nourishment - Rs. 1,000/- Expenses for bystander - Rs. 2,500/- Damage to clothing - Rs. 200/- Medical expenses - Rs. 12,500/- Pain and suffering - Rs. 12,500/- Disability - Rs. 20,000/- As the claimant in this case was also negligent, the Tribunal awarded only 50% of the compensation assessed i.e. Rs. 32,100/-. 10. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment in life. 11. The Tribunal took the monthly income of the claimant as Rs. 1,500/-, took the percentage of disability as 6% and adopted a MACA.No.151 & 163 of 2005 6 multiplier of 18 and assessed a compensation of Rs. 20,000/- for the disability caused. The claimant was running a workshop and earning Rs. 3,000/- per month, according to him. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs. 2,500/-. Taking into consideration the disabilities caused to the claimant as revealed from Ext.A12, we feel that his percentage of disability can be fixed at 10%. The multiplier adopted by the Tribunal as 18 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 54,000/- ( 10% x 2500 x 12 x 18). Thus on this count, the claimant is entitled to an additional compensation of Rs. 34,000/-. 12. For the pain and suffering endured by the claimant, the Tribunal awarded a compensation of Rs. 12,500/-. Having regard to the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. Thus on this count, the claimant is entitled to an additional compensation of Rs. 7,500/-. 13. No compensation was awarded by the Tribunal for the loss MACA.No.151 & 163 of 2005 7 of amenities and enjoyment in life. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. 14. The Tribunal awarded Rs. 13,500/- towards loss of earnings for six months @ Rs. 1,500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,500/-, he is entitled to a compensation of Rs. 22,500/- towards loss of earnings for 9 months @ Rs.2,500/- per month. Thus on this count, the claimant is entitled to an additional compensation of Rs. 9,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. There is another aspect in this case. The Tribunal awarded only 50% of the compensation assessed. The claimant has filed petition under Section 163 A of Motor Vehicles Act. Therefore, the question of negligence does not arise in this case. That being so, the question of reducing compensation for the alleged negligence of the claimant also does not arise. Therefore, we hold that the claimant is entitled to the entire compensation assessed i.e. Rs. 64,200/-. MACA.No.151 & 163 of 2005 8 16. In the result, the claimant is entitled to an additional compensation of Rs. 60,500/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. He is also entitled to the entire compensation assessed by the Tribunal i.e. Rs. 64,200/-. M.A.C.A.No.163/2005 17. The claimant n O.P.(MV)No.930/1995 sustained the following injuries as revealed from Ext.A13, copy of the wound certificate issued from Medical College Hospital, Thrissur. Type III compound fracture right tibia with a lacerated wound 2 x 3 cm. exposing tibial fracture 18. Ext.A14 is the reference card issued from the Medical College Hospital, Thrissur. Ext.A15 is the copy of his case sheet. Ext.A17 is his disability certificate. In Ext.A19, the certificate of disability, it is shown that the claimant has suffered a disability of 15%. PW3 is the doctor who issued Ext.A19. 19. The Tribunal awarded a total compensation of Rs. 59,700/-. The break up of the compensation awarded is as under : MACA.No.151 & 163 of 2005 9 Loss of earnings - Rs. 13,500/- Transport to hospital - Rs. 2,000/- Extra nourishment - Rs. 1,000/- Expenses for bystander - Rs. 2,500/- Damage to clothing - Rs. 200/- Medical expenses - Rs. 3,000/- Pain and suffering - Rs. 12,500/- Disability - Rs. 25,000/ 20. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment in life. 21. The Tribunal took the monthly income of the claimant as Rs. 1500 and took the percentage of disability as 8% and adopted a multiplier of 17 and awarded Rs. 25,000/- for the disability caused. According to the claimant, he was a brick manufacturing worker earning Rs. 200/- per day. He testified as PW2 to that effect. Taking into consideration the above aspect, we feel that his monthly income can be reasonably estimated at Rs. 2,500/-. Taking into account the nature of the disabilities suffered by the claimant as seen from Ext.A19, we feel that his percentage of disability can be fixed at 10%. The multiplier adopted by the Tribunal as 17 is not seriously challenged. MACA.No.151 & 163 of 2005 10 Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 51,000/- ( 10% x 2500 x 12 x 17). 22. The Tribunal awarded Rs. 13,500/- towards loss of earnings for six months @ Rs. 1,500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,500/-, he is entitled to a compensation of Rs. 22,500/- towards loss of earnings for 9 months @ Rs.2,500/- per month. Thus on this count, the claimant is entitled to an additional compensation of Rs. 9,000/-. 23. For the pain and suffering endured by the claimant, the Tribunal awarded a compensation of Rs. 12,500/- which appears to be very low. Having regard to the nature of the injury sustained, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 24. No compensation was seen awarded by the Tribunal for the loss of amenities and enjoyment in life. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 5,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. MACA.No.151 & 163 of 2005 11 25. In the result, the claimant is found entitled to an additional compensation of Rs. 67,500/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. In M.A.C.A.No.163/2005, the first respondent who is the appellant in M.A.C.A.No.151/2005 contended that the Tribunal has allowed the Insurance company to recover 50% of the compensation amount from him as he has no valid driving licence at the time of the accident to ride the motor cycle. But he would say that the first respondent was holding a Learners Licence at the time of the accident which was expired and renewed subsequently. But he is not entitled to challenge the said finding in these appeals as he remained absent before the Tribunal and did not produce his licence before the Tribunal. Further he has not challenged the judgment and award of the Tribunal in the connected O.Ps(MV). A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv MACA.No.151 & 163 of 2005 12 MACA.No.151 & 163 of 2005 13