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 7TH APRIL 2011 / 17TH CHAITHRA 1933 MACA.No. 1114 of 2007(F) ------------------------------------- [M.V.O.P.NO.338/2000 OF M.A.C.T, IRINJALAKUDA] .................... APPELLANTS/PETITIONERS: ----------------------------------------- RAJU, S/O.RAMU,NELLIPARAMBIL HOUSE, KOMBARA,IRINJALAKUDA P.O.,THRISSUR DISTRICT. BY ADV. SRI.N.KRISHNANKUTTY PILLAI. RESPONDENTS/DEFENDANTS: -------------------------------------------- 1. BAIJU,S/O.PARAMESWARAN,THEKKOT HOUSE, KOMBARA,MANAVALASSERY,IRINJALAKUDA P.O, THRISSUR DISTRICT. (DRIVER OF THE AUTO RICKSHAW KL-8/K-833). 2. RAGHU S/O.KUTTAPPAN VAIKATHUPARAMBIL HOUSE,POOVATHUSSERY P.O,THRISSUR DISTRICT. (OWNER OF THE AUTO RICKSHAW KL-8/K-833). 3. THE MANAGER,THE ORIENTAL INSURANCE CO-LTD.,BRANCH OFFICE,KODUNGALLUR, THRISSUR DISTRICT. 4. P.P.PETER,PAREKKADAN HOUSE,P.O.MURINGOOR, CHALAKUDY. (INSURED). R3 BY ADV. SRI.A.R.GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1114 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 7th day of April, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 338/2000 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated September 12, 2006 awarding a compensation of ` 78,353/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on January 27, 1998 at about 9.30 p.m. While the claimant was travelling in an auto- rickshaw bearing registration No.KL-8/K 833 from Porathissery to Irinjalakuda, the auto-rickshaw dashed on a culvert, due to the rash and negligent driving of the first respondent, and the claimant sustained serious injuries. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 2,00,000/-. 3. Respondents 1 and 2, the driver and the owner of the MACA 1114/2007 2 auto-rickshaw, remained absent and they were set ex parte by the Tribunal. The third respondent, the insurer of the offending vehicle, filed a written statement admitting the policy, but contended that the claimant did not sustain any injury in a road traffic accident. PWs.1 and 2 were examined and Exts.A1 to A11 were marked on the side of the claimant. Ext.B1 was marked on the side of the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred as alleged by the claimant, due to negligence of the first respondent and that the claimant sustained injuries in that accident and awarded a compensation of `78,353/- with interest @ 6% p.a. from the date of petition till realization and proportionate cost. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of MACA 1114/2007 3 the first respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The Tribunal awarded a total compensation of `78,353/-. Break up of the compensation awarded is as under:- Cost of extra nourishment : ` 7,600 and wages to attendants. Medical expenses : ` 9,033 Loss of earning : ` 7,500 Pain and suffering : ` 12,000 Loss of amenities and : ` 5,000 Enjoyment in life. Transportation expenses : ` 500 Permanent disability : ` 36,720 ------------------ Total : ` 78,353 ======= 7. The counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 8. The claimant sustained the following injuries in the accident:- “1) Segmental fracture of shaft of right femur. 2) Abrasion right knee. 3) Comminuted upper fracture, upper third of tibia MACA 1114/2007 4 and neck of right fibula. 9. The claimant suffered the following disabilities as certified by the doctor PW2 in Ext.A11 certificate:- “1) Partial ankylosis of right knee with restriction of flexion to a range of 0-80°. 2) Partial ankylosis of hip right with limitation of abduction and external rotation. 3) Multiple ugly scar on his right lower limb. 4) Shortening of his right lower limb by 1.5 cm. 5) He has difficulty in squatting, running, climbing upstairs and carrying and lifting heavy loads.” PW2 doctor certified that the claimant has suffered a permanent disability of 20%. 10. The Tribunal took the monthly income of the claimant as `1,500/-, took the percentage of disability as 12%, adopted a multiplier of 17 and awarded a compensation of ` 36,720/- for disability caused. The claimant was a coolie earning ` 3,500/- per month, according to him. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at ` 2,500/- per month. MACA 1114/2007 5 Percentage of disability assessed by PW2 as 20% appears to be reasonable. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of `1,02,000/- (Rs.2,500/- x 12 x 17 x 20%). Thus the claimant is entitled to an additional compensation of ` 65,280/- on this count. 11. The Tribunal awarded `12,000/- for pain and suffering endured by the claimant and `5,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of `20,000/- for pain and suffering and `20,000/- for the loss of amenities and enjoyment in life would be reasonable. 12. The Tribunal awarded a sum of ` 7,500/- towards loss of income for five months at the rate of `1,500/- per month. As we have fixed monthly income of the claimant as `2,500/-, he is entitled to a compensation of ` 12,500/- on this count. As regards the compensation awarded under other heads, we find MACA 1114/2007 6 the same to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of `93,280/-. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. He is entitled to interest @ 7.5 % per annum for the compensation already awarded and also for the enhanced compensation from the date of petition till realization. The third respondent being the insurer of the offending vehicle 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