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 MARCH 2011 / 12TH PHALGUNA 1932 MACA.No. 1642 of 2005() ----------------------- OPMV.217/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANT/APPLICANT --------------------------------- PADMAKUMAR @ SASI, KUNNUMPURATH VEEDU, KUSAVARAKAL, MUTTADA.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS/RESPONDENTS : --------------- 1. V.V.THOMAS, S/O.V.M.THOMAS, NO.26, APPU STREET, MYLAPORE, CHENNAI-4. 2. THOMSON.S.VARGHESE, S/O.V.V.THOMAS, T.C.9/353, PEROORKADA, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM. 3. THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., KOTTARATHIL BUILDINGS, PALAYAM, THIRUVANANTHAPURAM. 4. BIJU.J.VADAKKAN, VADAKKAN HOUSE, MUTHUSSERY, UDAYAGIRI, THALIPARAMBU, KANNUR. 5. SABU, S/O. JOSEPH, KANNIPPARAMBIL VEEDU, UDAYAGIRI, ALAMCODE VILLAGE, KANNUR. 6. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., PAYYANNOOR BRANCH, KANNUR. ADV. SRI.JOY GEORGE FOR R3 SMT.P.A.REZIYA FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1642 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.217/2000 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. In this appeal he challenges the judgment and award of the Tribunal dated November 4, 2004 awarding a compensation of Rs.1,57,450/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on August 1, 1999 at about 2 a.m.: Abrasion on the right shoulder with a bleeding fracture wound, fracture of the neck of right humerus, loss of tissue posterior aspect of right elbow, exposing the muscles and joint, fracture of the shaft of right humerus, fracture of both radius and ulna right side and fracture of the distal phalanges of the right middle finger. 2. The accident happened while the claimant was travelling in a car bearing Reg.No.TN 07 C 7602 driven by the second respondent from Thiruvananthapuram to Thrissur. When he reached at Karukutti, the car collided head on with a tempo van bearing Reg.No.KL 13 B MACA.No.1642/2005 2 9081. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 8,00,000/-. 3. Respondents 1 to 3 are the owner, driver and insurer of the offending car. Respondents 4 to 6 are the owner, driver and insurer of the tempo van involved in the accident. Respondents 1, 2, 4 and 5 remained absent before the Tribunal. Respondents 3 and 6, the insurers of the vehicle filed written statements admitting the policies, but attributed negligence to the driver of the other vehicle. 4. Pws 1 and 2 were examined and Exts.A1 to A12 and Ext.X1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending car by second respondent and awarded a compensation of Rs. 1,57,450/- with interest @ 9% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. MACA.No.1642/2005 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 second 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 Tribunal awarded a total compensation of Rs.1,57,450/-. The break up of the compensation amount awarded is as under: Loss of earning - Rs. 9,000/- Medical expenses - Rs.35,000/- Transportation - Rs. 2,000/- Damage to clothing - Rs. 250/- Bystander expenses - Rs. 3,000/- Extra nourishment - Rs. 2,000/- Pain and suffering - Rs. 20,000/- Disability - Rs. 61,200/- Loss of amenities - Rs. 25,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as MACA.No.1642/2005 4 Rs.1,500/- and the percentage of disability as 20% and adopted a multiplier of 17 as the claimant was aged 32 at the time of the accident and awarded Rs. 61,200/- for the disability caused. According to the claimant, he was a workshop mechanic earning Rs.6,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,750/-. The percentage of disability taken by the Tribunal as 20% appears reasonable, though the doctor has assessed the disability at 40% in Ext.A10 certificate of disability. The multiplier of 17 taken by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.1,12,200/- ( 20% x 2750 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.51,000/- 10. The Tribunal awarded Rs.20,000/- for the pain and suffering endured by the claimant. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 30,000/- would be reasonable on this count. 11. There is another aspect in this case. The Tribunal awarded MACA.No.1642/2005 5 Rs. 9,000/- towards loss of earnings for 6 months @ Rs. 1,500/- per month. As we have fixed the monthly income of the claimant as Rs. 2,750/-, he is entitled to a compensation of Rs. 16,500/- towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 7,500/-. 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 Rs. 68,500/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. 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. 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. MACA.No.1642/2005 6 MACA.No.1642/2005 7