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 3RD JUNE 2010 / 13TH JYAISTHA 1932 MACA.No. 2038 of 2006() ---------------------------------- OPMV.1773/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANT/APPLICANT: ----------------------------------------------------------- R.BABU PRASAD, RAJA BHAVAN, TC 43/1551, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.J.ROBINSON RESPONDENT(S): RESPONDENTS: ------------------------------------------------ 1. KRISHNANKUTTY, TC 50/1329, KIZHAKUNNUVILAM VEEDU, SATHYAN NAGAR, KARAMANA P.O., THIRUVANANTHAPURAM. 2. RAJAN C., S/O.CHELLAYYAN, THAZHASSERI PUTHEN VEEDU, PARK JUNCTION, DHANUVACHAPURAM P.O., NEYYATTINKARA. 3. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, ROHINI BUILDING, THAKARAPARAMBA ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM. 4. SANTHOSH RAVINDRAN, 'REMYA' U.P.7/340, KOCHULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 5. SIVAKUMAR.T , S/O.THANKAPPAN NAIR, THUNDUVILAKAM VEEDU, KALADI, KARAMANA P.O., THIRUVANANTHAPURAM. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. --------------------------------------------------- M.A.C.A NO. 2038 OF 2006 ---------------------------------- DATED THIS THE 3RD DAY OF JUNE, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV) No. 1773/2001 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram challenges the judgment and award of the Tribunal dated January 18, 2006 awarding a compensation of Rs. 63,000/- 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 31 at the time of accident and used to earn Rs. 6,000/- per annum as a Draughtsman (Civil). On August 14, 2001 at about 6.30 p.m. he was pillion riding on a motorcycle bearing registration No. KEQ-1756 ridden by the 5th respondent from Kumarapuram to Kamaleswaram. When he reached in front of M.S Institute of Computer Technology near Uppidammoodu, an autorickshaw bearing registration No. KL-01/M- M.A.C.A NO. 2038 OF 2006 2 4351, driven by the 2nd respondent came at a high speed and dashed against the motor cycle of the claimant. According to the claimant, accident occurred due to the negligence on the part of the 2nd respondent. The first respondent as the owner, the 2nd respondent as the driver and the 3rd respondent as the insurer of the offending autorckshaw are jointly and severally liable to pay compensation to the claimant. Respondents 4 & 5 are the owner and rider of the motor cycle in which the claimant was a pillion rider at the time of the accident. It was also insured with third respondent. The claimant sustained serious injuries. He claimed a compensation of Rs.3 lakhs against respondents 1 to 3. 3. Respondents 1 and 2, the owner and driver of the offending autorickshaw remained absent and were set ex-parte by the Tribunal. The 3rd respondent, insurer of the offending vehicle filed a written statement admitting the policy. Respondents 4 and 5, the owner and rider of the motor cycle were made formal parties in the O.P. They did not filed any written statement. M.A.C.A NO. 2038 OF 2006 3 4. PW1 and PW2 were examined and Exts.A1 to A8 were marked on the side of the claimant. Ext. B1 was marked on the side of the respondents and Ext. X1 was also marked. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.63,000/- with interest at the rate of 9% per annum from the date of petition till realization. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the 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 , the driver of the offending autorickshaw 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 claimant sustained following injuries as revealed from Ext.A4, the copy of the wound certificate issued from the M.A.C.A NO. 2038 OF 2006 4 hospital. “Abrasion on the right foot, anterior cruciate ligament/medial cruciate ligament injury to the right knee”. Ext.A7, certificate of disability issued by the Professor of Orthopaedics, PW2 showing that the claimant has unstable right knee with giving way sensation on weight bearing. He has assessed the permanent disability of the claimant as 14%. 8. The Tribunal awarded a total compensation of Rs. 63,000/-. The break up of the award amount is as under: Loss of earnings for 4 months : Rs. 8,000 Medical expense : Rs. 1,000 Extra nourishment and for : Rs. 1,000 engaging a bystander Damage to clothing : Rs. 250 Pain and suffering : Rs. 8,000 Disability caused : Rs.32,640 Loss of amenities : Rs.10,000 9. Counsel for the claimants sought enhancement of the compensation awarded for the disability caused. The Tribunal took M.A.C.A NO. 2038 OF 2006 5 the monthly income of the claimant as Rs. 2,000/- and took his percentage of disability as 8% and by adopting a multiplier of 17 awarded a compensation of Rs. 32,640/- for the disability caused. The claimant was a Draftsman (civil) earning Rs. 6,000/- per month according to him. Taking into consideration of the above aspect, we feel that the monthly income of the claimant can be reasonably fixed as Rs.3,000/-. 10. PW2, the doctor stated that the claimant has permanent disability of 14% as per Ext.A7, the copy of disability certificate issued by him. The claimant has now the following disabilities; “unstable right knee with giving way sensation on weight bearing. There is clinical evidence of unhealed medial collateral and anterior cruciate ligament injury, gross wasting of quadriceps muscles and signs of secondary osteoarthritic changes”. Taking into consideration of the above aspects, we feel that the percentage of disability can be reasonably assessed as 10%. Thus calculating for the disability caused and loss of earnings, claimant is entitled to a compensation of Rs. 61,200/-. Thus on this account, M.A.C.A NO. 2038 OF 2006 6 the claimant is entitled to an enhanced compensation of Rs. 28,560/-. 11. There is another aspect in this case. The Tribunal has awarded Rs. 8,000/- for loss of earnings for 4 months at the rate of 2,000/- per month. Now we have fixed the monthly income of the claimant as Rs. 3,000/-. Therefore, for the loss of earnings for 4 months, he is entitled to a compensation of Rs. 12,000/-. 12. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. There is another aspect. The total compensation awarded by the Tribunal is Rs. 60890/-. But the Tribunal has mistakenly noted it as 62890/-. Therefore the award of the Tribunal is counted as Rs. 60890/-. 13. Thus the claimant is entitled to an additional compensation of Rs. 32560/-. He is entitled to interest at the rate of 7.5% per annum from the date of petition till realization and proportionate cost. The 3rd respondent, being the insurer of the M.A.C.A NO. 2038 OF 2006 7 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) PKK M.A.C.A NO. 2038 OF 2006 8