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 3RD JANUARY 2011 / 13TH POUSHA 1932 MACA.No. 542 of 2007() -------------------------------- OPMV NO.1807/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .......................................... APPELLANT/ PETITIONER IN OP(MV) -------------------------------------------------------- MICHEAL, S/O. OUSO, KURIAPILLY HOUSE, RESIDING AT PERUMBI DESOM, KORATTY-KIZHAKKUMMURI VILLAGE, KORATTY EAST P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY, SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS 1 TO 3 IN OP(MV) --------------------------------------------------------------------------- 1. K.ABDUL AZEEZ, S/O. MOHAMMED, KUNNATH HOUSE, KUNNAMANGALAM P.O. 2. MAJEED, S/O. KOYADHEENKUTTY, POTTAMMAL HOUSE, NEAR MARKASS YATHEEN KHANA, WARD-10, KUNNAMANGALAM P.O., KOZHIKODE. 3. MANAGER, NEW INDIA ASSURANCE CO. LTD., CHEROOTTY ROAD, KOZHIKODE. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KRK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 542 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 3rd day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1807 of 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 16, 2006 awarding a compensation of Rs.51,636/- for the loss caused to him on account of the injuries sustained by him in a motor accident . 2. The claimant sustained fracture clavicle both sides, fracture superior and inferior pubic rami both side abdominal injury and crushing of urinary bladder with bulbar urethral rupture. The accident happened on 16-10- 2000 at about 11 a.m. at Nayathode on the Angamaly – Kalady road. The claimant was pillion riding on a motor cycle bearing registration No.KL-7/A 7903 at that time. A bus bearing registration No.KBF 6665 which was MACA 542/2007 2 proceeding in front of the motor cycle stopped. A lorry bearing registration No.KL-8/A 4896 was also stopped behind the motor cycle. Another goods carriage bearing registration No.KL-11/A 936, which was coming behind the lorry, hit on the lorry and it in turn hit on the motor cycle which in turn hit the back side of the bus. Alleging negligence against the 2nd respondent driver of the goods vehicle bearing registration No. KL-11/A 936, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.1,50,000/-. 3. Respondents 1 and 2, the owner and driver of the offending goods vehicle, remained absent before the Tribunal. The 3rd respondent insurer of the offending goods vehicle admitted the policy of the vehicle. The 4th respondent owner of the lorry bearing registration registration No.KL-8/A 4896 did not file any written statement. The 5th respondent insurer of the said lorry filed a written statement admitting the policy. MACA 542/2007 3 4. This O.P. was jointly tried along with O.P. (MV) No.1782 of 2000 filed by the rider of the motor cycle and a common award was passed. PWs.1 to 3 were examined and Exts.A1 to A15 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 2nd respondent and awarded a compensation of Rs. 51,636/- with interest @ 6 % p.a. from the date of petition till realization and proportionate costs. 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 3rd respondent Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence the 2nd respondent is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any MACA 542/2007 4 enhanced compensation. 7. The Tribunal awarded a total compensation of Rs.51,636/-. Break up of the compensation awarded is as under:- Cost of extra nourishment : Rs. 2,800 and wages to attendants. Medical expenses : Rs.15,016 Transportation : Rs. 300 Loss of earnings : Rs. 6,000 Pain and suffering : Rs. 12,000 Loss of amenities : Rs. 4,000 and happiness in life. Permanent disability : Rs. 11,520 ------------------ Total : Rs. 51,636 ======= 8. The learned counsel for the appellant/claimant sought enhancement of compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 8%, adopted multiplier of 8 and awarded Rs.11,520/- towards the disability caused. According to the claimant, he was a teacher and by conducting tuition he used to earn MACA 542/2007 5 Rs.5,000/- per month. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at Rs.2,500/-. The claimant has suffered permanent disability at 15.51%, as seen from Ext.A15 certificate issued by the doctor. It is also certified that the claimant has now difficulty to hold and carry objects with both upper limb and to raise objects above the head with both upper limb, due to restricted movements of both shoulder. He is having difficulty to squatt properly, to climb up and getting down steps and to sit legs crossed, due to limitation of range of motion of both hip. Taking into consideration the above disability caused to the claimant, we feel that his percentage of disability can reasonably be fixed at 12%. As he was aged 55, multiplier of 8 adopted by the Tribunal appears to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 28,800/-(Rs.2,500/- x 12 x 8 x 12%). Thus, the claimant is entitled to an additional compensation of Rs.17280/- on this count. MACA 542/2007 6 10. The Tribunal awarded Rs.12,000/- for pain and suffering endured and Rs.4,000/- for the loss of amenities and enjoyment in life, which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 15,000/- for loss of amenities and enjoyment in life and Rs.15,000/- for pain and suffering endured would be reasonable. 11. The Tribunal awarded Rs.6,000 towards loss of earnings for four months at the rate of Rs.1,500/-per month. As we have fixed the monthly income of the claimant as Rs.2,500/-, the claimant is entitled to a compensation of Rs.10,000/- 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. 12. In the result, the claimant is found entitled to an additional compensation of Rs.35,280/-. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization for the MACA 542/2007 7 compensation awarded by the Tribunal and also for the enhanced compensation. The 3rd respondent Insurance Company 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