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 10TH FEBRUARY 2011 / 21ST MAGHA 1932 MACA.No. 369 of 2004() ---------------------- OPMV.1142/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- N.HARIDASAN, AGED 36 YEARS, S/O. APPUKUTTAN, NADAKKAVIL HOUSE, P.O.KALLIPALAM, SHORANUR-2. BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): RESPONDENTS 1,3,4 AND 6 -------------------------------------- 1. M.K.MOHANDAS, S/O.PADMANABHAN, JANAKIRAM TRANSPORT COMPANY LIMITED, GANDHI ROAD, KOZHIKODE. 2. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, NADAKKAVU, KOZHIKODE. 3. THE MANAGING PARTNER, MORAYUR TRANSPORT COMPANY, P.O.MANJERI, MALAPPURAM DISTRICT. 4. THE BRANCH MANAGER, THE ORIENTAL INSURANCE COMPANY, NILAMBUR, MALAPPURAM. ADV. SRI.MILLU DANDAPANI FOR R1 SRI.P.JAYASANKAR FOR R2 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R4 SRI.P.JACOB MATHEW FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.369 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1142/1994 on the file of Motor Accidents Claims Tribunal, Kozhikode. In this appeal he challenges the judgment and award of the Tribunal dated June 14,2002 awarding a compensation of Rs.1,38,155/- 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 : 1. Lacerated wound over the right wrist and palm about 8 cm. long with scaphoid dislocation. 2. Grade II compound comminuted fracture right ulna. 3. Fracture radial head right and 4. Fracture humerus lower third right. 2. The accident occurred on November 25,1993 at about 11.45 p.m. While the claimant was travelling in the bus bearing Reg.No.KL/11A 3639 from Calicut to Valancheri, the bus collided head on with another bus bearing Reg.No.KLM 7409. Alleging negligence against the driver of the bus bearing Reg.No..KLM 7409., MACA.No.369/2004 2 the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 3,00,000/-. 3. Respondents 1 to 3 in the O.P. are the owner, driver and insurer of the bus bearing Reg.No.KL/11A 3639. Respondents 4 to 6 in the O.P. are the owner, driver and insurer of the bus bearing Reg.No..KLM 7409. The first respondent in the O.P. filed a written statement admitting the accident, but attributed negligence to the driver of the other bus. Respondents 2 and 5 in the O.P. were deleted from the party array. Respondents 3 and 6 in the O.P., the insurers of the vehicle filed written statement admitting the policy of the respective bus. Fourth respondent in the O.P. remained absent before the Tribunal. 4. PW1 was examined and Exts.A1 to A10 and Ext.C1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by fifth respondent, the driver of the bus bearing Reg.No..KLM 7409 and awarded a compensation of Rs. 1,38,155/- with interest @ 9% per annum from MACA.No.369/2004 3 the date of petition till realisation and a cost of Rs.1500/- against respondents 4 to 6. 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 fifth respondent in the O.P. 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.1,38,155/- The break up of the compensation amount awarded is as under: Loss of earning power - Rs. 54,720/- Loss of earnings - Rs. 15,000/- Transportation - Rs. 2,000/- Extra nourishment - Rs. 2,000/- Damage to clothing - Rs. 300/- Treatment expenses - Rs. 25,135/- Bystander expenses - Rs. 4,000/- Pain and suffering - Rs. 25,000/- Permanent Disability - Rs. 10,000/- 8. Counsel for the claimant sought enhancement of MACA.No.369/2004 4 compensation for loss of earning power. He pointed out that no compensation was awarded for loss of amenities and enjoyment in life and for disfigurement caused. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/- and took the percentage of disability as 19% as certified by the Medical Board in Ext.C1 and adopted a multiplier of 16 as the claimant was aged 36 at the time of the accident and awarded Rs. 54,720/- for loss of earning power. According to the claimant, he was conducting hotel business at Madras. Ext.A6 series are the said licence. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,000/-. The percentage of disability as 19% as certified by the Medical Board and the multiplier adopted as 16 are not seriously challenged. Thus calculated for loss of earning power, the claimant is entitled to a compensation of Rs. 72,960/- ( 19% x 2000 x 12 x 16). Thus on this count, the claimant is entitled to an additional compensation of Rs.18,240/-. 10. No compensation was awarded by the Tribunal for loss of amenities and enjoyment in life. Taking into consideration the nature MACA.No.369/2004 5 of the injury sustained by the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 11. The claimant has suffered serious disfigurement to his right hand as seen from Ext.C1, the certificate issued by the Medical Board. Therefore, for the disfigurement caused, the claimant is entitled to a compensation of Rs.10,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 33,240/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The fourth respondent/6th respondent in the O.P. 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.369/2004 6 MACA.No.369/2004 7