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 21ST JUNE 2010 / 31ST JYAISTHA 1932 MACA.No. 308 of 2004() ---------------------- OPMV.115/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER IN O.P(MV) NO.115/1998: -------------------------------------------------------------------------- JYOTHI LALITHAMBIKA, W/O. SASIKUMAR, AGED 40 YEARS, CASHIER, UNION BANK OF INDIA, PALPATHU HOUSE, PERINGOLE KARA, AIKKARANADU NORTH VILLAGE. BY ADV. SRI.P.K.VIJAYAN RESPONDENTS/RESPONDENTS IN O.P(MV): ----------------------------------------------------------------- 1. SASIKUMAR, S/O. KUNJAN, JYOTHIS, T.C.5/1890-1, AMBALAMUKKU, PEROORKADA, TRIVANDRUM, NOW RESIDING AT PALPATHU HOUSE, PERINGOLE KARA, AIKKARANADU NORTH VILLAGE, KOLENCHERRY P.O. 2. NATIONAL INSURANCE CO. LTD., P.B.NO.6, M.M. JUNCTION, KOLENCHERRY P.O.-682 311. 3. ABDULLA, S/O. IBRAHIM, THETTILEMARI PUTHENPURAYIL HOUSE, KADATHI KARA, VELLOORKKUNNAM VILLAGE. 4. MANAGING DIRECTOR, KERALA STATE TRANSPORT CORPORATION, TRIVANDRUM. R2 BY ADV. SRI.LAL GEORGE. R4 BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 308 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 21st day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.115 of 1998 of the Motor Accidents Claims Tribunal, Muvattupuzha challenges the judgment and award of the Tribunal dated May 30, 2003, awarding a compensation of Rs.89,170/- for the loss caused to the claimant, on account of the injury sustained by her in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was a lady, aged 40 at the time of the accident and as a Cashier-cum-Clerk in Union Bank of India, she used to earn Rs.7,625/- per month as salary. On October 9, 1997 the claimant was pillion riding on a scooter bearing registration No.KL-1/F 1384, ridden by her husband, first respondent, along Muvattupuzha –Ernakulam road. At that time a K.S.R.T.C. bus bearing registration No.KLX 6074, MACA 308/2004 2 proceeding in front of the scooter. When they reached in front of St. Peter’s College, Kolenchery, the rider of the scooter overtook the bus and skidded. The claimant was thrown on the road. At that time the bus run over her left leg and she sustained serious injuries. According to the claimant, the accident occurred due to the negligence of the drivers of both vehicles, respondents 1 and 3. The first respondent as the owner-cum-rider of the scooter, the second respondent as the insurer and third respondent as the driver of the bus and fourth respondent as its owner are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.4,50,000/-. 3. Respondents 1 and 3, owner-cum-rider of the scooter and driver of the bus respectively, remained absent and were set ex parte by the Tribunal. The second respondent, insurer of the scooter, filed written statement, admitting the policy and further contended that the accident occurred due to negligence of the third MACA 308/2004 3 respondent. 4. PWs.1 to 4 and Exts. A1 to A 16 were marked on the side of the claimant. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident happened due to the negligence of first respondent and awarded a compensation of Rs.89,170/- with interest at the rate of 9% p.a. from the date of petition till realization and proportionate costs against respondents 1 to 3. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimant and learned 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, rider of the scooter, is not seriously challenged in this appeal. Therefore, the only question for consideration is whether the claimant is entitled to any enhanced compensation. MACA 308/2004 4 7. The claimant sustained the following injuries, as revealed from Ext.A4 copy of the wound certificate, Ext.A6 medical certificate and Ext.A7 case summary :- 1) Lacerated wound middle of left leg. 2) Abrasion medial side of left leg. 3) lacerated wound medial side of left foot extending up to planter surface. 4) Tendons and bones exposed. 5) Crush injury (L) foot. 6) Compound fracture (L) tibia. 7) Type III B open fracture both bone left leg distal 3rd with friction burns lateral aspect of the leg. 8) Degloved skin of the (L) foot with loss of skin over the dorsum. 8. The Tribunal awarded a total compensation of Rs.89,170/-. Break up of the compensation awarded is as under:- Loss of earning : Rs. 7,310/- Transportation : Rs. 1,050/- Extra nourishment : Rs. 6,000/- Damage to clothing : Rs. 500/- Loss of amenities : Rs.12,000/- MACA 308/2004 5 and enjoyment of life. Treatment expenses : Rs.15,810/- By-stander’s expenses : Rs. 1,500/- Pain and suffering : Rs.25,000/- Disability caused : Rs.20,000/- ------------------ Total : Rs.89,170/- ======= 9. The learned counsel for the appellant sought enhancement of compensation awarded for the disability caused and for loss of amenities and enjoyment in life. 10. The Tribunal awarded a compensation of Rs.20,000/- for the disability caused. The claimant was employed as a Cashier-cum-Clerk in Union Bank of India and was drawing a salary of Rs.7,625/-. Exts.A13 and A14 are the certificates to that effect. Taking into consideration the above fact, we feel that her monthly income can reasonably be fixed at Rs.4,000/- for the purpose of calculating the compensation for the disability. 11. The percentage of disability was shown as 40% in Ext.A12 certificate of disability, which appears to be excessive. Taking into consideration the nature of the MACA 308/2004 6 injuries sustained, we feel that the percentage of disability can easily be assessed at 20%. The claimant was aged 40 at the time of the accident. Therefore, the multiplier to be adopted is 17. Thus, for the disability caused, the claimant is entitled to a compensation of Rs.1,63,200/-(Rs.4,000/- x17 x 20/100). Thus, on this count, the claimant is entitled to an additional compensation of Rs.1,43,200/-. 12. The Tribunal awarded Rs.12,000/- for the loss of amenities and enjoyment in life, which appears to be inadequate. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.20,000/- would be reasonable on this Court. Thus, the claimant is entitled to an additional compensation of Rs.8,000/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is entitled to an additional compensation of Rs. 1,51,000/-. He is entitled to MACA 308/2004 7 interest @ 9% from the date of petition till realization with proportionate costs. The second respondent being the insurer of the scooter, shall deposit the amount 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. mn