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 29TH MARCH 2011 / 8TH CHAITHRA 1933 MACA.No. 37 of 2005() -------------------------------- OPMV.1680/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER -------------------------------------------- DAVIS, S/O.KUNJU VAREED, KOLAMKANNI HOUSE, NELLAYI P.O., THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): RESPONDENT ---------------------------------------------- 1. T.K.FRANCIS, THEKKUMPARAMBIL HOUSE, P.O.VELLAMCHIRA (VIA), ALOOR. 2. ANTONY, S/O.POULOSE, CHENODAN HOUSE, PARAKKATTUKARA, MURIYAD VILLAGE, KALLETTUMKARA. 3. THE MANAGER, ORIENTAL INSURANCE CO.LTD., KUNNAMKULAM, THRISSUR DISTRICT. R3 BY ADV. SRI.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 37 OF 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 29th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1680/1995 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated May 22, 2002 awarding a compensation of ` 35,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on December 1, 1994 at about 12.30 p.m. at Kolathur. While the claimant was travelling in an auto-rickshaw bearing registration No.KL- 8/A 4651 from Alathur to Nellai, due to the negligence of the second respondent, the driver of the auto-rickshaw, it overturned and the claimant sustained serious injuries. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of MACA 37/2005 2 `1,20,000/-. 3. The first respondent, the owner the offending auto-rickshaw, filed a written statement admitting the accident and contended that the third respondent is liable to pay the compensation. The second respondent remained absent and he was set ex parte by the Tribunal. The third respondent, the insurer of the offending vehicle, filed a written statement admitting the policy but contended that there was no negligence on the part of the second respondent. The claimant was examined as PW1 and Exts.A1 to A7 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent and awarded a compensation of ` 35,000/- with interest @ 9% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the MACA 37/2005 3 counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The claimant sustained the following injuries in the accident:- “1) Fracture to the right clavicle. 2) Fracture left humerus. 3) Fracture 2nd, 3rd and 4th ribs right side.” 7. The Tribunal awarded a total compensation of ` 35,000/-. Break up of the compensation awarded is as under:- Loss of earning : ` 6,000 Transportation expenses : ` 1,000 Medical expenses : ` 8,000 Bystander's expenses : ` 1,000 Pain and suffering : ` 10,000 Loss of amenities and : ` 9,000 Enjoyment in life. MACA 37/2005 4 ------------------ Total : ` 35,000 ======= 8. The counsel for the claimant sought enhancement of compensation for loss of amenities and enjoyment in life and for pain and suffering endured y the claimant. He has pointed out that no compensation was awarded for the disability caused to the claimant. 9. In Ext.A7 certificate of disability the Orthopaedic Surgeon has certified that the claimant has suffered a permanent disability as 8%. The claimant has pain while lifting the arm. As the claimant was working as a driver earning ` 2,000/- per month, according to him, we feel that he is entitled to compensation for the disability caused. Taking into consideration the above aspect, we feel that monthly income of the claimant can reasonably be fixed as `1,500/-. Having regard to the nature of the disability caused to the claimant, we feel that percentage of disability can reasonably be fixed at 5%. He was aged 35 at the time of the accident. Therefore, multiplier of 16 would be MACA 37/2005 5 reasonable in this case. Thus calculated for the disability caused, the claimant is entitled to a compensation of `14,400/- (` 1,500/- x 12 x 16 x 5%) for the disability caused. 10.The Tribunal awarded ` 9,000/- for loss of amenities and enjoyment in life and `10,000/- for pain and suffering endured by the claimant, which appear to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of ` 15,000/- for pain and suffering and ` 15,000/- for loss of amenities and enjoyment in life would be reasonable. 11. The Tribunal awarded a sum of ` 6,000/- towards loss of income for six months at the rate of `1,000/- per month. As we have fixed monthly income of the claimant as ` 1,500/-, he is entitled to a compensation of ` 9,000/- on this count. 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 ` 28,400/- with interest @ 9% MACA 37/2005 6 per annum from the date of petition till realization and proportionate cost. The appeal is field with a delay of 702 days. The claimant is not entitled to interest during the said period. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn