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 31ST MARCH 2010 / 10TH CHAITHRA 1932 MACA.No. 1445 of 2005() ----------------------- OPMV.979/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/PETITIONER: ----------------------------------- P.C. RAJAN, S/O. CHELLAPPAN PILLAI, AGED 53 YARS, JIJU SADAN, KOLATHUR P.O., PERINTHALMANNA. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): RESPONDENTS: --------------------------- 1. P.K. GANGADHARAN, S/O. PARI, POOZHIKUNNATH HOUSE, KURUPPATHAL, MOORKANAD P.O., KOLATHUR, DRIVER OF BUS KL-10/H.3634. 2. K.K. ABDURAHIMAN, S/O. KUNJIRA, KUKTHUKALLINGAL HOUSE, KULAMANGALAM P.O., VALANCHERY, OWNER OF BUS. 3. M/S. UNITED INDIA INSURANCE CO. LTD., D.O.I. WHITE LINES, KALLAI ROAD, KOZHIKODE P.O.-670002. ADV. SRI.JACOB SEBASTIAN FOR R1 & R2 SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1445 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of March, 2010 JUDGMENT Barkath Ali J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.979/2000 of Motor Accidents Claims Tribunal, Manjeri challenges the judgment and award of the Tribunal dated October 4, 2004 awarding a compensation of Rs. 2,49,515/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : On July 23, 1999 at about 9.45 a.m., the claimant was pillion riding on the motor cycle bearing Reg.No.KL-10/G-2471 from Kolathur to Puthanangadi. When he reached near Kolathur, a bus bearing Reg.No.KL-10/H-3634 driven by the first respondent came at a high speed and dashed against the motor cycle of the claimant. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending M.A.C.A.No.1445/2005 2 bus by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 5 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending bus remained absent and were set ex-parte by the Tribunal. The third respondent, the insurer of the offending bus, filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the rider of the motor cycle. 4. PW1 was examined and Exts.A1 to A9 and Ext.X1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by first respondent and awarded a compensation of Rs. 2,49,515/- with interest @ 6% per annum from the date of petition till realisation and Rs. 5,000/- as cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. M.A.C.A.No.1445/2005 3 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 first 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 ? 7. The claimant sustained fracture of both bones of right leg and crush injury on the right foot as seen from Ext.A2, the copy of the wound certificate and Ext.A3, the discharge summary issued from the hospital. Ext.A4 are the photographs showing the present state of the right foot. He was hospitalised for 88 days. Ext.A6, the salary certificate shows that he was driver-cum-Head Constable in the Police Department and was drawing a salary of Rs. 5555/-. Ext.A6 also shows that he was on leave from 21-11-2009 to 3-4-2000. Ext.X1, the certificate of disability shows that he has suffered a permanent disability of 17%. He was aged 48 at the time of the accident. 8. The Tribunal awarded a total compensation of M.A.C.A.No.1445/2005 4 Rs.2,49,515/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 30,400/- Transport to hospital -Rs. 2,000/- Extra nourishment -Rs. 4,400/- Bystanders expenses -Rs. 4,400/- Treatment and medical expenses -Rs.1,44,209/- Pain and suffering -Rs. 10,000/- Disability -Rs. 49,106/- Disfigurement -Rs. 5,000/- ----------------- Total -Rs. 2,49,515/- =========== 9. The claimant sought enhancement of the compensation for the disability caused and for the pain and suffering endured by the claimant. Accepting Ext.A6, the Tribunal took the monthly income of the claimant as Rs. 5555/- and took the multiplier as 13 and the percentage of disability as 17% as shown in Ext.X1 and assessed the total amount as Rs.1,47,318/- and deducted 1/3 from the same for his personal expenses and awarded Rs. 49,106/- for the disability caused. 10. Counsel for the appellant submitted that the Tribunal went wrong in deducting 1/3 for his personal expenses from the compensation awarded for the disability caused and for loss of earning power. There is force in the above contention. Only in the case of M.A.C.A.No.1445/2005 5 death of an individual, 1/3 of the income is deducted for his personal expenses. In the present case, the compensation is awarded for the disability caused. Therefore, the Tribunal went wrong in deducting 1/3 for the personal expenses of the claimant. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal for the disability caused i.e. Rs. 1,47,318/-. 11. For the pain and suffering endured by the claimant, the Tribunal awarded Rs. 10,000/- only which appears to be very low. Taking into account the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 12. Thus, the claimant is entitled to an additional compensation of Rs. 1,08,212/-. There is another aspect in this case. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded as well as M.A.C.A.No.1445/2005 6 for the enhanced compensation. He is entitled to proportionate cost also. The third 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 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 sv. M.A.C.A.No.1445/2005 7