IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 MACA.No. 201 of 2006() ---------------------- OPMV.13/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): PETITIONER ------------------------ SALEEM, S/O.ABDUL KADER, CHATHANATTU HOUSE, WEST VENGOLA, PERUMBAVOOR. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): --------------- 1. V.SATHEESH, ANNADHANAPATTY, SALEM. 2. R.SELVA KUMAR, GUGAI, SALEM. 3. UNITED INDIA INSURANCE CO LTD., SALEM. 4. H.HAREESH KUMAR, 19/43, SOUBLE STREET, SUCHINDRAM. 5. THE ORIENTAL INSURANCE CO LTD., MALIK MAHAL, H.P.O. JUNCTION, NAGERCOIL, PIN-629 001. ADV. SRI.JACOB MATHEW (B/O) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.201 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.13/1999 of Motor Accidents Claims Tribunal, Perumbavoor challenges the judgment and award of the Tribunal dated September 30, 2004 awarding a compensation of Rs.1,58,570/- ( mistakenly noted as 1,76,570/-) for the loss caused to him 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 22 at the time of the accident and was a dealer in tread rubber earning Rs.4,000/- per month, according to him. On July 26, 1998 he was travelling in a bus bearing Reg.No.TN-27J- 1266 from Salem. At about 5.45 p.m., when he reached near Nalikalpatty, the bus collided head on with a lorry bearing Reg.No.TCK-4797. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving MACA.No.201/2006 2 of the offending bus by second respondent. First respondent as the owner, second respondent as the driver 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 owner and driver of the offending bus and fourth respondent, the owner of the lorry involved in the accident remained absent and were set ex parte by the Tribunal. Respondents 3 and 5, the insurers of the respective vehicles filed separate written statements admitting the policies of the respective vehicles and attributed negligence to the driver of the other vehicle. 4. PW1 was examined and Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by second respondent and awarded a compensation of Rs. 1,58,570/- ( mistakenly noted as Rs. 1,76,570/-) with interest @ 9% per annum from the date of MACA.No.201/2006 3 petition till realisation and proportionate cost against respondents 1 to 3. 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 Companies. 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 claimant sustained the following injuries as revealed from Ext.A4, wound certificate issued from Medical College Hospital, Selam, Ext.A5, discharge card issued from Krishna Nursing Home, Ernakulam and Exts.A6 and A7 treatment certificates issued from the said hospital. Lacerated wound 2 x 2 x 1 cm. on the left leg, abrasion 1 x 1 cm. right face and fracture both bone left leg. 8. Ext.A8 certificate of disability issued by the Medical MACA.No.201/2006 4 Board, Ernakulam General Hospital shows that claimant has a permanent disability of 30%. He has post traumatic stiffness of the left ankle joint with painful restriction of dorsi flexion and plantar flextion inversion and eversion of left ankle with a deformity of left lower third of left leg. He has scarring over back and medial side of leg with shortening of 1 ½ cm. left lower extremity. 9. The Tribunal awarded a total compensation of Rs.1,58,570/- ( mistakenly noted as Rs.1,76,570/-). The break up of the compensation awarded is as under : Pain and suffering - Rs. 30,000/- Damage to clothing - Rs. 300/- Transportation - Rs. 7,000/- Medical expenses - Rs. 59,550/- Bystander expenses & Extra nourishment - Rs. 10,000/- Disability - Rs. 36,720/- Loss of amenities - Rs. 15,000/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. 11. The Tribunal took the monthly income of the claimant as Rs.1,800/- and took the percentage of disability as 10% and took a MACA.No.201/2006 5 multiplier of 17 and awarded Rs. 36,720/- for the disability caused. According to the claimant, he was doing business in tread rubber and was earning Rs. 4,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Taking into consideration the disability caused to the claimant as seen from Ext.A8 certificate of disability and as testified by PW1, one of the doctors of the Medical Board, we feel that his percentage of disability can be fixed at 15%. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 76,500/- ( 15% x 2500 x 12 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs.39,780/-. 12. For the loss of amenities and enjoyment of life, Rs. 15,000/- was awarded by the Tribunal which appears to be very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 25,000/- would be reasonable on this count. Thus, on this count, the claimant is entitled to an additional MACA.No.201/2006 6 compensation of Rs.10,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the award of the Tribunal is corrected as Rs. 1,58,570/-. The claimant is entitled to an additional compensation of Rs. 49,780/-. 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.201/2006 7 MACA.No.201/2006 8