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 24TH JUNE 2010 / 3RD ASHADHA 1932 MACA.No. 723 of 2004() ---------------------- MAC.327/2003 of MACT PALA .................... APPELLANT/PETITIONER: ----------------------------------- V.S. SASIDHARAN, S/O. KUMARAN, VADAKARAYIL HOUSE, POONJAR SOUTH VILLAGE, NOW RESIDING AT NELLICKAL, SHM P.O., KOTTAYAM-6. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): RESPONDENTS: --------------------------- 1. P.D. THOMAS, PULICKAL HOUSE (P T M S), ERATTUPETTA. 2. K.N. GOPALAKRISHNA PILLA, KALARICKAL HOUSE, KARIYILAKKANAM BHAGOM, THALAPPALAM. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., PONKUNNAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 723 of 2004 ------------------------------------------------------ Dated: JUNE 24, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in MAC No.327/2003 on the file of the Motor Accidents Claims Tribunal, Pala, challenges the judgment and award of the Tribunal, dated, December 6, 2003 awarding a compensation of Rs.3,61,400/- for the loss caused to the claimant 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 37 at the time of the accident and was working as a Technician in Kuwait earning Rs.22,000/- (200 Kuwait Dinar) per month . On November 9, 1995 at about 2.45 p.m. the claimant was riding his motorcycle bearing registration No.KL5N/8501 from Poonjar to Edappady. When he reached near Kurisupally junction at Edappady, a bus bearing registration No.KEK 3249 driven by the 2nd respondent came at a high speed from the opposite side and dashed against the motorcycle of the claimant. The claimant sustained serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 2nd respondent. The 1st respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending bus are jointly and severally M.A.C.A. 723 of 2004 2 liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and the driver of the offending bus, remained absent and were set ex parte by the Tribunal. The 3rd respondent, insurer of the offending bus, filed a written statement admitting the policy and further contended that the accident occurred due to the negligence of the claimant. 4. The claimant was examined as PW.1 and Exts.A1 to A38 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs.3,61,400/- with interest @ 9% per annum from the date of petition till realisation and a cost of Rs.10,000/-. 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 2nd 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. M.A.C.A. 723 of 2004 3 7. The claimant sustained the following injuries as revealed from Ext.A5, copy of the wound certificate, issued from the Government hospital and Ext.A7 discharge card issued from the Medical College Hospital, Kottayam:- (1) type III compound fracture both bones of right leg, there was crushing of muscles and soft tissues of the leg, the vascularity of the leg was in doubt. (2) bleeding from nostrils and left ear. (3) blunt injury abdomen. (4) chest injury. (5) right shoulder and sterno clavicular injury. In Ext.A13 certificate of disability issued by the Orthopedic Surgeon of Matha Hospital, Thellakom, shows that he has a permanent partial orthopedic disability of 25%. Ext.A14 is the disability certificate issued by the Neuro Surgeon to the effect that he has a neurological disability of 5%. 8. The Tribunal awarded a total compensation of Rs.3,61,400/-. The break up of the compensation awarded is as under:- loss of earnings for one year - Rs.36,000/- transportation - 12,000/- extra nourishment - 2,000/- damages to clothing - 500/- cost of medicine - 46,100/- M.A.C.A. 723 of 2004 4 bystander's expenses - 12,000/- pain and suffering - 30,000/- permanent disability - 1,72,800/- loss of earning power, amenities and marriage prospects - 50,000/- 9. The Counsel for the appellant/claimant sought enhancement of the compensation awarded for the disability caused. The Tribunal took the monthly income of the claimant as Rs.3000/- and his disability as 30%, adopted a multiplier of 16 and awarded Rs.1,72,800/- for the disability caused. The Tribunal also awarded Rs.50,000/- for loss of earning power, loss of amenities and marriage prospects. Ext.A15 salary certificate of the claimant issued from Kazema Engineering Projects, Kuwait, shows that he was working as a Supervisor at their air condition parts show room earning a salary of Kuwait Dinar 200, which comes to Rs.22,000/-. Taking into consideration the above fact, we feel that his monthly income can be reasonably estimated at Rs.3500/-. The percentage of disability assessed by the Tribunal as 30% and the multiplier as 16 are not seriously challenged. Thus for the disability caused, the claimant is entitled to a compensation of Rs.2,01,600/- (3500 x 12 x 16 x 30%). Thus on this count the claimant is entitled to an additional compensation of Rs.28,800/-. M.A.C.A. 723 of 2004 5 10. There is another aspect in this case. The Tribunal awarded loss of earnings for one year during the period he was laid up as Rs.36,000/-. Now we have fixed the monthly income as Rs.3500/-. Therefore towards loss of earnings, the claimant is entitled to a compensation of Rs.42,000/-. Therefore on this count the claimant is entitled to an additional compensation of Rs.12,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. Thus the claimant is entitled to an additional compensation of Rs.40,800/-. In the circumstances of the case we feel that interest @ 7.5% per annum from the date of petition till realisation would be reasonable for the enhanced compensation. The 3rd 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 mt/-