IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 MACA.No. 614 of 2004() ---------------------------------- OPMV.561/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): /PETITIONER: ------------------------------------------- RAJAN, AGED 39 YEARS, S/O. SANKARAN, PANNIKOTTIL HOUSE, KOTTAPPURAM, VELIYAKUNNU P.O., VALANCHERRY. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): RESPONDENTS: -------------------------------------------------- 1. SELVAN, S/O. ANANTHAN, PUTHANTHODIYIL HOUSE,PERUMUDIYOORTHARA P.O., PATTAMBI. 2. A.P.BINDU, RAJAN, S/O. A.P.SHANMUGHAN, ANDIYAM PARAMBIL HOUSE, KASWARAMANGALAM P.O., PONNANI. 3. UNITED INDIA INSURANCE CO. LTD., AMBADI BUILDING, C.V. JUNCTION, PONNANI P.O. R3 BY ADVS. SRI.S.ARUN RAJ, SRI P JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 614 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 12th day of January,2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.561 of 2000 on the file of the Motor Accidents Claims Tribunal, Tirur. In this appeal he challenges the judgment and award of the Tribunal dated December 22, 2003 awarding a compensation of Rs.1,37,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident . 2. The accident happened on May 5, 2000 at about 9.30 a.m. while the claimant along with another person were walking through the untarred portion of the Kottappuram – Valiyakunnu public road, they were knocked down by a bus bearing registration No.KL-10C/8409 driven by the 1st respondent. The claimant sustained fracture femur right and fracture tibial condyle in the accident. Alleging negligence against the 1st respondent, the driver of MACA 614/2004 2 the offending bus, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2, lakhs. 3. The 1st respondent, driver of the offending bus, remained absent before the Tribunal. The 2nd respondent the owner of the offending bus though entered appearance did not file any written statement. The 3rd respondent insurer of the offending bus filed a written statement admitting the policy of the bus. 4. This O.P. was jointly tried along with another O.P. field by another injured person in the accident and a common award was passed by the Tribunal. Exts.A1 to A19 (series) 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 1st respondent and awarded a compensation of Rs.1,37,000/- with interest @ 9% p.a. from the date of petition till realization and cost of Rs.1,500/-. The claimant has come up in appeal MACA 614/2004 3 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 of the 1st respondent, driver of the offending bus, 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. 7. The Tribunal awarded a total compensation of Rs.1,37,000/-. Break up of the compensation awarded is as under:- Loss of earning : Rs. 12,000 Transportation : Rs. 3,000 Damage to clothing : Rs. Extra nourishment : Rs. 2,000 Medical expenses : Rs. 65,000 including bills for Rs.47,555/-, hospitalization for 59 days and bystander expenses Bystander expenses : Rs. Pain and suffering : Rs. 20,000 Disability : Rs. 35,000 MACA 614/2004 4 ------------------ Total : Rs.1,37,000 ======= 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.2,000/-, took the percentage of disability as 20%, adopted multiplier of 16 and assessed a compensation of Rs.76,800/- towards disability caused. The Tribunal limited the compensation for the disability to Rs.35,000/-. No reason is stated by the Tribunal for limiting the compensation for the disability caused to Rs.35,000/-. Therefore, the claimant is entitled to the entire compensation of Rs.76,800/- assessed by the Tribunal for the disability caused. 10. The claimant was aged 35 and an Automobile Mechanic. Therefore, we feel that monthly income of the claimant can reasonably be fixed at Rs.2,250/-. In Ext.A18 certificate it is stated that he had suffered a disability of MACA 614/2004 5 20%. Taking account the nature of the disability caused, we feel that the percentage of disability can be fixed only at 15%. Thus the claimant is entitled to a compensation of Rs.64,800/- for the disability caused. Thus the claimant is entitled to an additional compensation of Rs.29,800/- on this count (Rs.64,800 – Rd.35,000). 11. For loss of earning the Tribunal awarded Rs.12,000/- for six months at the rate of Rs.2,000/- per month. As we have fixed the income of the claimant as Rs.2,250/- per month, he is entitled to Rs.13,500/- for loss of earning for six months. Thus, he is entitled to an additional compensation of Rs.1,500/- 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.31,300/- with interest @ 7.5% per annum from the date of petition till realization and proportionate costs. The 3rd respondent insurer of the MACA 614/2004 6 offending bus 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