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 11TH MARCH 2010 / 20TH PHALGUNA 1931 MACA.No. 1291 of 2005() ----------------------- OPMV.302/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/APPLICANT --------------------------------- T.JAMES RAJAN, S/O.THAPASI NADAR, NEDIYAKALA BUNGLOW, POZHIYOOR, KULATHOOR. BY ADV. SRI.NAGARAJ NARAYANAN SRI.N.NARAYANAN NAIR SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENT(S): RESPONDENTS --------------- 1. ANILKUMAR.B., NEDIYAKALA PUTHEN VEEDU, KULATHAMAL, CHAIKOTTUKONAM (PO), NEYYATTINKARA. 2. MANOJ KUMAR, MANOJ BHAVAN, NELLIVILA, VAZHUTOOR, PERUMPAZHUTHOOR. 3. M/S.NEW INDIA ASSURANCE COMPANY LIMITED, P.B.NO. 74, MO WARD, NEAR TOWN HALL, ALAPPUZHA-688 001. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1291 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th 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.302/2001 of Motor Accidents Claims Tribunal, Neyyattinkara challenges the judgment and award of the Tribunal dated June 15, 2001 awarding a compensation of Rs. 24,360/- 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 : The claimant is a farmer aged 58 earning Rs. 3500/- per month according to him. On May 18, 2000 at about 11 a.m., the claimant was riding his motor cycle bearing Reg.No.KL-01-A-3936 along Oorambu- Uchakada road. When he reached at Kunnumpuram, another motor cycle bearing Reg.No.Kl-01-R-4520 ridden by the second respondent came at a high speed and dashed against his motor cycle. The claimant sustained very serious injuries. According to the claimant, accident MACA.No.1291/2005 2 occurred due to the rash and negligent riding of the other motor cycle by second respondent. First respondent as the owner, second respondent as the rider and third respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 3,18,780/-. 3. Respondents 1 and 2, the owner and rider of the offending motor cycle filed a joint written statement admitting the accident, but contending that the accident occurred due to the negligence on the part of the claimant. The third respondent, the insurer of the offending motor cycle, filed a written statement admitting the policy. 4. Claimant was examined as PW1 and Exts.A1 to A6 were marked on his side. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 24,360/-. 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 MACA.No.1291/2005 3 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, the rider of the offending motor cycle 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. 24,360/-. The break up of the award amount is as under : Disability -Rs. 15,360/- Pain and suffering -Rs. 5,000/- Loss of earning -Rs. 4,000/- ----------------- Total -Rs. 24,360/- ========= 8. The claimant sustained the following injuries : Lacerated wound 3 x 2 x 0.5 cm.(R) knee, abrasion 4 x 3 cm. over ( R) knee, abraded contusion 4 x 3 cm. on the back of (R ) shoulder, abrasion linear 10 cm. on the back of ( R) scapula, abrasion 3 x 2 cm. on the back of (L) elbow, subluxation acromio clavicular joint on (R ) side, fracture navicular bone on ( R) foot with sprain of MACA.No.1291/2005 4 midtarsel joint and ankle and severed contusion of (L) shoulder and (L) side head. 9. Ext.A2 is the copy of the wound certificate issued from the Govt. Hospital, Parassala. Ext.A3 is the discharge card issued from the Taluk Hospital, Neyyattinkara. Ext.A6 is the copy of disability certificate issued by the doctor shows that claimant has now permanent disability of 24%. The Tribunal took his permanent disability as 8% and adopted a multiplier of 8 and took his monthly income as Rs. 2,000/- and awarded a compensation of Rs. 15,360/- for the disability caused. The claimant was aged 58 and was a farmer according to him. Taking into consideration the above fact, we feel that the monthly income of the claimant can be taken as Rs. 2500/- per month. 10. In Ext.A6, the doctor certified that the claimant has a permanent disability of 24%. Taking into consideration the nature of the injury sustained by the claimant, the Tribunal took the disability as 8% which appears to be very low. The claimant sustained subluxation acromio clavicular joint , fracture of bone of right foot with sprain of MACA.No.1291/2005 5 midtarsel joint and ankle and several contusions. Taking into consideration the above aspect, we feel that the claimant would have suffered a permanent disability of 15%. The Tribunal adopted a multiplier of 8. Having regard to the fact that the claimant was aged 58 at the time of the accident, the multiplier adopted by the Tribunal appears to be reasonable. Thus calculated for the disability caused, the claimant is entitled to an compensation of Rs. 36,000/- ( 15 % x 2500 x 12 x 8). Thus the claimant is entitled to an additional compensation of Rs. 20,640/- on this count. 11. There is another aspect in this case. The Tribunal awarded Rs. 4,000/- for the loss of earnings i.e. for two months @ Rs. 2,000/- per month. We have fixed the monthly income of the claimant as Rs. 2,500/-. Therefore, towards loss of earnings, he is entitled to a compensation of Rs. 5,000/-. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 1,000/-. 12. Thus, the claimant is entitled to an additional compensation of Rs. 21,640/- . He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third MACA.No.1291/2005 6 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.1291/2005 7