IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 MACA.No. 1772 of 2009 ----------------------- ( OP(MV).986/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY) APPELLANT/PETITIONER ------------------------ V.P.PAVITHRAN S/O. KUNHIRAMAN, AGED 59 YEARS, PHYSICAL EDUCATION TEACHER, MAVILAYI AMSOM DESOM, P.O. MUNDALUR KANNUR TALUK AND DIST. BY ADV. SRI.M.V.AMARESAN RESPONDENT/RESPONDENT NO.3: -------------------------------------- M/S. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., GE PLAZA, AIRPORT ROAD,YERWADA PUNE-411 006. BY ADV. SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ORDERS ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T CONSEQUENT TO THE DISMISSAL OF THE PETITION FOR CONDONATION OF DELAY IN FILING THE APPEAL , THE APPEAL IS ALSO DISMISSED. Sd/- P.R. RAMAN, JUDGE. 02.12.2009 Sd/- P.R. RAMACHANDRA MENON, JUDGE. /true copy/ P.S. TO JUDGE. lk A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------- M.A.C.A NO. 1772 OF 2009 ----------------------------------------- DATED THIS THE 24TH DAY OF MARCH 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV) No. 986/2003 of Motor Accidents Claims Tribunal, Thalassery challenges the judgment and award of the Tribunal dated 7.2.2008 awarding a compensation of Rs. 52,500/- 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 was aged 52 and working as Physical Education Teacher in Panchayat High School, Pappinisseri at the time of accident and was drawing monthly salary of Rs. 11,540/- , according to the claimant. On January 8, 2003 at about 4.50 p.m. near Roopa Medicals Kannur, lwhile the claimant was walking along the road, he was knocked down by a maruti car bearing registration No. KL-14/B/6496. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the M.A.C.A NO. 1772 OF 2009 2 rash and negligent driving of the car by its driver, the 1st respondent. First respondent as the driver, 2nd respondent as the owner and 3rd respondent as the insurer of the offending car are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the driver and owner of the car remained absent and was set ex-parte by the Tribunal. The 3rd respondent, the insurer of the offending car filed a written statement admitting the policy and further contending that the accident occurred due to the negligence on the part of the claimant. 4. The claimant was examined as PW1 and Exts. A1 to A7 and Ext. X1 were marked on the side of the claimant. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 1st respondent and awarded a compensation of Rs. 52,500/-. The claimant has now come up in appeal challenging the M.A.C.A NO. 1772 OF 2009 3 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 first respondent, the driver of the offending car 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. 52,500/-. The break up of the award amount is as under : Medical expense Rs. 13,630/- Transport charges Rs. 2,000/- Bystanders expense Rs. 800/- Review Rs. 300/- Extra nourishment Rs. 1,000/- Loss of earning Rs. 16,780/- Pain and suffering Rs. 10,000/- Loss due to disability Rs. 7,920/- ---------------------------- Total: Rs. 52,430/- Rounded to Rs. 52,500/- The claimant sustained comminuted fracture of head of M.A.C.A NO. 1772 OF 2009 4 the radius (Left). Ext. A6 is the discharge card issued by A.K.G Hospital, Kannur. Ext.A3 is the copy of the discharge summary issued from the City Hospital. He was in the hospital from 9.1.2003 to 13.1.2003. Ext.A4 is the certificate of disability issued by the doctor stating that claimant has permanent disability of 10% of left upper limb. Ext.X1 is the disability certificate issued by the Medical Board which shows that the claimant has permanent disability of 4%. 8. The claimant was aged 52 at the time of accident and used to earn Rs. 11,540/- per month as Physical Education Teacher of Panchayat High School, Pappinissery, according to the claimant. Ext.A5 is the certificate issued by the Principal of the school showing the leave taken by him as well as the monthly salary. The Tribunal took the monthly income as Rs. 1,500/- for the assessment of disability caused as the claimant was still in service and adopted a multiplier of 11 and took the disability of 4% as M.A.C.A NO. 1772 OF 2009 5 shown in Ext.X1 and awarded a compensation of Rs. 7920/- for the disability caused. This is disputed by the counsel for the claimant. In Ext.A5 his monthly income is shown as Rs. 11,540/- therefore according to the claimant disability should have been calculated at that rate. There is no force in the above contention. He was aged 52 at the time of accident as is seen from Ext. A6. Therefore, he would retire from service within three years and thereafter he will be getting pension only. Taking into consideration of all these facts and the fact that the claimant has suffered some disability and as he is still in service, we feel that an additional compensation of Rs. 25,000/- would be reasonable for the disability caused. 9. As regards the compensation awarded other heads, we find the same to be reasonable. Therefore, we are not disturbing the same. 10. Thus, the claimant is entitled to an additional compensation of Rs. 25,000/-. He is entitled to interest @ M.A.C.A NO. 1772 OF 2009 6 7% per annum from the date of petition till realization and proportionate cost. The 3rd 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) pkk