IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 MACA.No. 843 of 2009() ---------------------- OPMV.2132/1999 of II ADDL. M.A.C.T., KOZHIKODE .................... APPELLANT(S): PETITIONER -------------- SOUMINI, D/O. KRISHNAN NAIR, AGED 56 YEARS, THEVARMANNIL HOUSE.P.O, CHATHAMANGALAM, KOZHIKODE DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): RESPONDENTS 1 TO 3 --------------- 1. C.K. RAJAN, S/O. P.C. NARAYANA, KONIYERIYEN HOUSE, P.O. ALEVIL, KANNUR. 2. KURUNTHORAYI MANHA RAFEQUE, S/O. AZEEZ, AGED 38 YEARS, AZEEZ MANZIL, CHELARE AMSOM, THILANOOR.P.O, THAZHE CHOVVA, KANNUR. 3. THE NEW INDIA ASSURANCE COMPANY LTD., NEAR MUNICIPAL BUS STAND, K0ZHIKODE. ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010 ALONG WITH MACA 163/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 843 of 2009 & 163 of 2010 ------------------------------------------------------ Dated: JULY 23, 2010 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same award of the II Addl. Motor Accidents Claims Tribunal, Kozhikode in OP(MV) 2132/1999 dated July 21, 2008. 2. The claimant was a lady aged 48 and employed as a Peon in Defence Security Corps, Kannur earning a monthly salary of Rs.4161/-. On June 7, 1999 while she was travelling in the bus bearing registration No.KL-11/D 2169 from Kozhikode to Kannur and reached at Muzhappilangad, the bus collided head on with another bus bearing registration No.KRN 3749 owned by the 1st respondent and driven by the 2nd respondent. The claimant sustained the following injuries:- 1. lacerated wound of 1.5 cm over the philtrum 2. lacerated wound of 2 cm x 0.5 cm x 0.5 cm. over the muccosal aspect of the upper lip. 3. contusion of 1 cm. x 1 cm. over the left forearm. 4. minimal mobility of first and second upper teeth. 5. contusion over the left side of the chin. MACA 843/09 & 163/2010 2 6. Cervical spine injury with quadriparesis. 7. MRI scan showed posterior disc prolapse C4/C5 and C5/C6 level with moderate spine compression. Alleging negligence against the 2nd respondent, driver of the offending bus, she filed the OP under sec.166 of the Motor Vehicles Act claiming a compensation of Rs.7,30,000/-. 3. The driver, insurer and owner of the bus in which the claimant was travelling were also made parties as respondents 5 to 7 in the OP. Respondents 3 and 6, insurers of the respective vehicles, filed written statements before the Tribunal and contested the matter. They admitted the policy of the respective vehicles. 4. The claimant was examined as PW.1 and Exts.A1 to A13 series and Ext.X1 were marked on the side of the claimant before the Tribunal. On an appreciation of evidence the Tribunal awarded a total compensation of Rs.4,12,976/- with interest @ 7% per annum from the date of petition till realisation and a cost of Rs.500/-. The claimant has filed MACA 843/2009 claiming enhancement of the compensation awarded. The 3rd respondent Insurance Company of the offending vehicle filed MACA 163/2010 contending that the amount awarded by the Tribunal for the permanent disability caused is excessive. MACA 843/09 & 163/2010 3 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The Tribunal awarded a total compensation of Rs.4,12,976/-. The break up of the compensation amount is as under: transport to hospital Rs.2,000/- extra nourishment 1,500/- damage to cloth 500/- bystander's expenses 2,800/- medical expenses 1,000/- pain and suffering 15,000/- temporary loss of income (Rs.4161 x 13 months and 11 days) 55,618/- permanent disability 3,24,558/- loss of amenities in life 10,000/- 7. For assessing the compensation under permanent disability, the Tribunal took the monthly income of the claimant as Rs.4161/-, took the percentage of disability as 50%, adopted a multiplier of 13 and awarded Rs.3,24,558/-. Counsel for the Insurance Company argued that the claimant is getting a pension of Rs.1800/- per month and that she has only 11 years of service left and that therefore the Tribunal went wrong in accepting her monthly income as Rs.4161/- and adopting a multiplier of 13. MACA 843/09 & 163/2010 4 8. Counsel for the claimant, on the other hand, submitted that the claimant has lost her future prospects of getting promotion as revealed from the certificate issued from her employer and that therefore the Tribunal should have taken a higher multiplicand in this case. He further submitted that even after retirement she can do some other work and that therefore the Tribunal should have taken a multiplier higher than 13. 9. The total salary of the claimant was Rs.4161/- as revealed from her pay slip Ext.A11. Though she was advised for promotion to the grade of Daftry on August 18, 2000, she was not able to join duty and was to retire as Peon and her service was terminated from August 31, 2000 as she has become invalid. All the above facts were evidenced by the certificates produced by the claimant before the Tribunal. As the claimant's date of birth is June 3, 1951 as revealed from the extract of the school admission register Ext.A12, she could have continued in service till June 30, 2011. That apart, even after retirement she could have taken up some other lucrative job. Therefore the Tribunal is perfectly justified in taking a multiplier of 13. 10. As regards the percentage of disability, Ext.X1 disability certificate issued by the Medical Board would show that she has suffered a permanent disability of 40%. The Tribunal took the MACA 843/09 & 163/2010 5 disability as 50% for assessing the compensation for the disability caused. Due to the injuries sustained she has become invalid and was terminated from service. Therefore the Tribunal is perfectly justified in taking her disability as 50%. That being so, the compensation awarded by the Tribunal for the permanent disability caused as Rs.3,24,558/- is just and reasonable. As regards the compensation awarded under other heads also, we find the same to be reasonable and not excessive. That being so, both the appeals have to be dismissed. In the result, both the appeals are dismissed. No costs. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-