IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 MACA.No. 1020 of 2006 ----------------------- OPMV.3278/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER ---------------------------------- CHANDRASEKHARAN NAIR, DEEPA NIVAS, 31/488, KACHAPPILLY ROAD, VYTTILA P.O., KOCHI-19. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS --------------- 1. JOHN P.GEORGE, PAINUMKAL HOUSE, PUTHIYAKAVU, TRIPUNITHURA. 2. THE NATIONAL INSURANCE CO. LTD., TRIPUNITHURA. ADV. SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1020 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act in O.P.(MV)No.3278/1997 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated June 14, 2005 awarding a compensation of Rs. 41,250/- to the claimant for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts in brief are these : The appellant/claimant was aged 50 and was employed in Cochin Shipyard and was drawing a salary of Rs. 10614.75 per month. On July 2, 1997 at about 8.15 a.m., while he was travelling in a bus bearing Reg. No.KEE 6717 from Vytilla to Ernakulam along Sahodaran Ayyappan road, it dashed against an auto rickshaw bearing Reg.No.KL 7/P 1741 at Panampally Nagar. The claimant sustained fracture on the right humerus. He claimed a compensation of Rs. 2 lakhs alleging that MACA.No.1020/06 Page numbers the accident occurred due to the negligence of the driver of the bus, the first respondent. 3. The first respondent, owner cum driver of the offending bus remained absent before the Tribunal. The second respondent, Insurer of the offending bus filed a written statement contending that the accident occurred due to the negligence on the part of the driver of the Auto rickshaw. 4. The claimant was examined as PW1 and Exts.A1 to A12 were marked on his side before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence on the part of the first respondent, the driver of the bus and granted a compensation of Rs. 41,250/-. Dis-satisfied with the compensation awarded, the claimant has filed this appeal claiming enhancement of compensation. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent, the driver of the offending bus is also not challenged in this appeal. Therefore, the only question to be decided is whether the MACA.No.1020/06 Page numbers claimant is entitled to any enhanced compensation ? 6. The appellant/claimant sustained segmental fracture of right humeral shaft which was managed by closed inter nailing and bone marrow injection. 7. We have perused the copies of wound certificate and the treatment certificate and the certificate issued by the Orthopedic Surgeon produced by the counsel for the appellant. He was hospitalised from 2-7-1997 to 8-7-1997 and from 8-9-1997 to 18-09-1997. He has a permanent partial disability of 7% as revealed from Ext.A7 disability certificate. Ext.A8, the salary certificate produced from the Cochin Shipyard Ltd. shows that he was working as an Assistant Safety Officer there and was drawing a salary of Rs. 10614.75. 8. The Tribunal awarded compensation as follows : Transport to hospital - Rs. 500/- Damage to clothing - Rs. 250/- Extra nourishment - Rs. 500/- Attendant expenses - Rs. 500/- Treatment expenses - Rs.2,000/- MACA.No.1020/06 Page numbers Loss of leave - Rs. 7,500/- Pain - Rs.20,000/- Loss of amenities - Rs.10,000/- --------------------- Rs.41,250/- ============= 9. It is pointed out by the learned counsel for the appellant that the Tribunal did not award any compensation for the disability caused and that therefore, for the disability caused, he is entitled to compensation. There is force in the above contention. The appellant has suffered a disability of 7% as seen from Ext.A7, the certificate of disability. Therefore, towards the disability caused he is entitled to compensation. He was aged 50 at the time of the accident. His monthly salary was fixed at Rs. 2500/- by the Tribunal which appears to be reasonable. As he was aged 50, adopting a multiplier of 18 would be reasonable in this case. He has suffered a permanent disability of 7%. Thus calculated, for the disability caused, he is entitled to a compensation of Rs. 16,800/- ( 7% of 2500 x 12 x 8). Towards, loss of leave for three months, he was awarded a compensation of Rs. 7500/- by the Tribunal. As he has suffered a MACA.No.1020/06 Page numbers fracture of right hand, he would have been laid up for six months. Therefore, for the loss of leave, he will be entitled to a compensation of Rs. 15,000/- ( Rs.2500 x 6). Thus, on this count he is entitled to an additional compensation of Rs. 7500/- . For the pains and sufferings Rs. 20,000/- was awarded by the Tribunal. Taking into consideration, the nature of the injury sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs. 30,000/- would be reasonable on this count. Thus, he is entitled to an additional compensation of Rs. 10,000/- under this head. For the loss of amenities Rs. 10,000/- was awarded which appears to be very low. Having regard to the nature of the injury sustained, we feel that Rs. 20,000/- would be adequate on this head. This, on this count, he is entitled to an additional compensation of Rs. 10,000/-. In all other aspects, the compensation awarded by the Tribunal appears to be reasonable and we are not disturbing the same. In the result, the claimant is found entitled to an additional compensation of Rs. 44,300/-. He is entitled to interest @ 9% per annum from the date of petition till realisation. The second respondent, the insurer, shall deposit the amount before the Tribunal within one MACA.No.1020/06 Page numbers month with interest and proportionate costs. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1020/06 Page numbers