IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 MACA.No. 404 of 2004(B) ----------------------------------- (O.P(MV).NO.1299/1998 DTD. 03/07/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA) .................... APPELLANT/PETITIONER: ------------------------------------- K.K.SUDHAKARAN, S/O. KARUNAKARAN, AGED 50 YEARS, ALLILE HOUSE, VADAVUCODU P.O., PUTHENCRUZ (VIA). BY ADV. SRI.PEEYUS A.KOTTAM. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. VIJAYAN, S/O. PARAMESWARAN NAIR, KANNIKARAYIL HOUSE, SASTHAMUGHAL, KAKKADUKARA, MAMALA P.O. 2. SHIBU, S/O.PARAMU, CHIRAPPATTU HOUSE, OPP: KEAL, MAMALA, MAMALA P.O., KAKKADU KARA, THIRUVANIYOOR VILLAGE. 3. UNITED INDIA INSURANCE COMPANY LTD., MUVATTUPUZHA BRANCH. 4. ISSAC, S/O. MATHEW, KANJIRATHATTU HOUSE, PUTTUMANNOOR KARA, PUTHENCRUZ. 5. JAYAN, S/O. RAJAN, NADUVILAVEETTIL HOUSE, CHEMMANADU KARA, THIRUVANIYOOR VILLAGE. 6. NATIONAL INSURANCE CO. LTD., KOLENCHERRY 7. SYAMALA VIJAYAN, KANNIKARA PUTHENPURAYIL MAMALA P.O. R3 BY ADV. SRI.RAJESH THOMAS, R6 BY ADV.SMT.SARAH SALVY, R7 BY ADV. SRI.A.T.ANILKUMAR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 404 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 27th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1299 of 1998 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. He sustained the following injuries in a motor accident that occurred on August 19, 1998 at 8.30 a.m. while the jeep KL-7/E 1026, in which the claimant was travelling, collided head on with lorry bearing registration No.KRT 7635:- “Mild hemeturia and catheterization was done and that was necessitated due to the contusion of the urethra. He also sustained abrasions of right elbow joint and contusion over the lower part of the left side of the chest. X-ray showed fracture 6th, 7th, 8th and 9th ribs of the left side. Ultrasound scanning showed tear in the spleen and the upper pole of the left kidney and a huge retroperitoneal hemetoma. Abdomen was opened and rapture of the spleen and the presence of retroperitoneal hemetoma were confirmed and the blood collected inside the peritoneal cavity was removed. Splenectomy was done MACA 404/2004 2 and the patient’s general condition was under control and patient had an uneventful post operative period. Further 4 pints of blood were transfused per operatively”. 2. Alleging negligence against drivers of both the vehicles, the claimant filed the O.P. under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.2 lakhs. Respondents 1 to 3 are the owner, driver and insurer of the lorry and respondents 4 to 6 are the owner, driver and insurer of the jeep. Seventh respondent was the present owner of the lorry. Respondents 1, 2, 4, 5 and 7 remained absent before the Tribunal. Only respondents 3 and 6 insurers of respective vehicles contested the matter and they admitted the policy of respective vehicles. 3. This O.P. was tried along with other O.Ps. filed by other injured persons and a common award was passed. 4. PWs.1 to 6 were examined and Exts. A1 to A20 were marked on the side of the claimant. The claimant was examined as PW3. On the side of the contesting respondents, Exts.B1 and B2 were marked. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the MACA 404/2004 3 second respondent driver of the lorry and awarded a compensation of Rs.68,255/- with interest at the rate of 9% 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. 5. Heard the learned counsel for the appellant and learned counsel for the Insurance Companies. 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, driver of the lorry 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.68,255/-. Break up of the compensation awarded is as under:- Loss of earnings : Rs. 6,000/- Transportation : Rs. 1,500/- Damage to clothing : Rs. 1,000/- and attendant expenses. Medical expenses : Rs.12,752/- Pain and suffering : Rs.18,000/- Loss of amenities : Rs.14,000/- and enjoyment of life. Loss of earning power : Rs.15,000/- MACA 404/2004 4 ------------------ Total : Rs.68,252/- Rounded to : RS.68,255/- ======= 8. The learned counsel for the claimant pointed out that no compensation was awarded by the Tribunal for the disability caused, though Ext.A10 treatment certificate shows that the claimant suffered very serious injuries. He suffered fracture of ribs and injury in the spleen and upper pole of the left kidney. Therefore, we feel that the percentage of disability suffered by him can reasonably be fixed at 10%. The Tribunal took his monthly income as Rs.1,500/-. According to him, he was aged 43 at the time of the accident and was a Stone Cutter. Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at Rs.2,500/-. Multiplier of 15 would be reasonable in this case as he was aged 43 at the time of the accident. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.45,000/- (2500 x 12 x 15 x 10%). 9. The Tribunal awarded Rs.6,000/- for loss of earnings i.e., 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/-, he is MACA 404/2004 5 entitled to a compensation of Rs.10,000/- on this count. 10. For pain and suffering Rs.18,000/- was awarded by the Tribunal, which is on the lower side. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.25,000/- would be reasonable 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. 11. In the result, the claimant is entitled to an additional compensation of Rs.56,000/-. He is entitled to interest @ 9% from the date of petition till realization. The third respondent being the insurer of the offending lorry, 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