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 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 MACA.No. 1574 of 2005() ----------------------- OPMV.1339/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- MUJEEB RAHMAN. A.M., S/O. M. UMMER `ALMIHAD', J.T. ROAD, THALASSERY. BY ADV. SRI.M.SASINDRAN SRI.SREEJITH S.NAIR RESPONDENTS/RESPONDENTS --------------- 1. KRISHNAMMA, W/O. VADIVELU, IIND MOUNT, DOOR NO.F 22/1, SUP COLONY, JOG FALLS, SAGAR, SHIMOGA DISTRICT, KARNATAKA. 2. N. NAGENDRA, S/O. VADIVELU IIND MOUNT, DOOR NO.F22/1 SUP COLONY JOG FALLS, SAGAR, SHIMOGA DISTRICT, KARNATAKA. 3. THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, KANNUR. (POLICY NO.14731/96, ISSUED AT THE UNITED INDIA INSURANCE CO.LTD., SAGAR BRANCH, SHIMOGA DISTRICT. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON 26/11/2010 PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1574 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1339/1998 on the file of Additional Motor Accidents Claims Tribunal, Thalassery. In this appeal he challenges the judgment and award of the Tribunal dated October 20,2004 awarding a compensation of Rs.1,70,250/- for the loss caused to him on account of the injuries sustained in a motor accident. He sustained the following injuries in that accident that occurred on January 11, 1998 at about 5.50 p.m. Compound fracture right femur, fracture of nasal bone, fracture of right maxilla, injury to right eye ball. 2. The accident happened while the claimant was riding his scooter bearing Reg.No.KL-13/C-9429 and when he reached at Kurichiyil, the scooter dashed against the jeep bearing Reg.No.BLO- 7905 driven by the second respondent.. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 10,00,000/-. MACA.No.1574/2005 2 3. Respondents 1 and 2, the owner and the driver of the offending jeep remained absent before the Tribunal. The third respondent, the insurer of the offending jeep filed a written statement admitting the policy. 4. PWs 1 to 4 were examined and Exts.A1 to A14 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by second respondent and awarded a compensation of Rs. 1,70,250/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. 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 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 is not challenged in this appeal. Therefore, the only MACA.No.1574/2005 3 question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The break up of the compensation awarded by the Tribunal is as under : Orthopaedic disability - Rs.16,200/- Loss of vision - Rs.32,400/- Transportation - Rs. 3,500/- Extra nourishment - Rs. 2,750/- Damage to clothing - Rs. 500/- Treatment expenses - Rs.55,000/- Attendant's expenses - Rs. 8,250/- Future treatment - Rs. 5,000/- Loss of earnings - Rs.16,500/- Pain and suffering - Rs.20,000/- Loss of amenities and enjoyment in life - Rs.10,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of orthopaedic disability as 5%, adopted a multiplier of 18 and awarded Rs. 16,200/- for the orthopaedic disability. The Tribunal took the percentage of disability MACA.No.1574/2005 4 of loss of vision as 10% and awarded Rs. 32,400/- on this count. The claimant was working as a Salesman in a textile shop earning Rs. 4,000/- as salary as evidenced by Ext.A13 his salary certificate . Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2,500/-. His orthopaedic disability is assessed at 18% as evidenced by Ext.A8 disability certificate. PW3 is the orthopaedician who issued Ext.A8. Taking into consideration the nature of disabilities caused to the claimant, the percentage of orthopaedic disability assessed to the claimant can be reasonably fixed at 10%. PW3 is the Orthopaedician who issued Ext.A8. Claimant has lost the vision of his right eye which is certified by the doctor in Ext.A5 as total permanent and irrecoverable. PW2 is the Ophthalmologist who issued Ext.A5 certificate. PW4 is the doctor who issued the treatment certificate - Ext.A6. According to him, the claimant has a total disability of 30% which appears to be reasonable as he has lost the vision of his right eye. The percentage of disability in the case of loss of vision of one eye is 30% as provided in part II of the Schedule I of Workmen's Compensation Act. Therefore, in this case also the same percentage of MACA.No.1574/2005 5 disability can be accepted for loss of vision of the right eye of the claimant. The multiplier adopted by the Tribunal as 18 is not seriously challenged. Taking into consideration the orthopaedic disability caused to the claimant as noted in Ext.A8 and as testified by PW2, we feel that the orthopaedic disability of the claimant can be reasonably fixed at 10%. Thus calculated for the orthopaedic disability caused, the claimant is entitled to a compensation of Rs. 54,000/- ( 10 % x 2500 x 12 x 18) . Thus on this count, the claimant is entitled to an additional compensation of Rs.37,800/-. For the loss of vision, the claimant is entitled to a compensation of Rs. 1,62,000/- ( 30% x 2500 x 12 x 18). Thus on this count, the claimant is entitled to an additional compensation of Rs.1,29,600/-. 10. The Tribunal awarded Rs.20,000/- for the pain and suffering endured by the claimant 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. 30,000/- would be reasonable on this count. 11. The Tribunal awarded Rs. 10,000/- for loss of amenities MACA.No.1574/2005 6 and enjoyment in life. Having regard to the nature of the injuries sustained and the fact that the claimant was unmarried and was aged only 27, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 12. There is another aspect in this case. The Tribunal awarded Rs. 16,500/- towards loss of income for 11 months @ Rs. 1,500/- per month. As we have fixed the monthly income of the deceased as Rs. 2,500/-, he is entitled to a compensation of Rs. 27,500/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 11,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs. 1,93,400/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third 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 MACA.No.1574/2005 7 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.1574/2005 8