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 18TH JUNE 2010 / 28TH JYAISTHA 1932 MACA.No. 874 of 2005(C) ----------------------- OPMV.3507/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: --------------------------------------- AMINA, AGED 42, W/O.MYTHEEN, RESIDING AT POOVATHUMCHALIL VEEDU, PAIPRA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.BIJU JOSEPH. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. RAMESHKUMAR AND BROS. NO.2, VEPERY CHURCH ROAD, VEPERY, MADRAS-600 007. 2. DOMINIC, S/O.VARGHESE, PUTHUSSERI VEEDU, CHUNANGAMVELI, ALUVA. 3. M/S.ORIENTAL INSURANCE CO LTD., CHATHEDRAL ROAD, D.O. NO.3, V.D.S. HOUSE, 26 CATHEDRAL ROAD MADRAS. R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, BY ADV. SRI.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 874 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 18th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.3507 of 1994 of the Motor Accidents Claims Tribunal, Perumbavoor challenges the judgment and award of the Tribunal dated March 31, 2001 awarding a compensation of Rs29,206/- for the loss caused to the claimant, on account of the injury sustained by her in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 31 at the time of the accident and used to earn Rs.1,500/- per month. On July 3, 1994 at about 2.30 p.m. while she was travelling in an auto-rickshaw bearing registration No. KL-7E/6467 along the Aluva-Angamaly road, a Maruthi car bearing registration No.TSA-8330, driven by the second respondent, came at a high speed and dashed against another car bearing registration No.KL-5/9154, which in MACA 874/2005 2 turn hit against the auto-rickshaw in which the claimant was traveling. She sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending Maruthi car bearing registration No.TSA 8330 by the second respondent. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending Maruthi car are jointly and severely liable to pay the compensation to the claimant. 3. Respondents 1 and 2, owner and driver of the offending Maruthi car, remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending Maruthi car, filed a written statement, admitting the policy and further contended that the accident took place due to the negligence on the part of the drivers of other vehicles involved in the accident. 4. This O.P. was jointly tried along with another O.P. filed by another injured person in the same accident and a common award was passed. MACA 874/2005 3 5. PWs.1 to 4 were examined and Exts. A1 to A14 (series) were marked on the side of the claimant. Exts.X1 and X2 were marked as court Exhibits. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of the evidence awarded a compensation of Rs.29,206/- with interest at the rate of 9% p.a. from the date of petition till realization. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 6. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 7. 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 offending Maruthi car, is not seriously challenged in this appeal. Therefore, the only question for consideration is whether the claimant is entitled to any enhanced compensation. 8. The claimant sustained type II compound fracture MACA 874/2005 4 tibia lower 3rd right, as revealed from Ext.A11 copy of the wound certificate. Ext.A12 is the certificate issued from the Department of Orthopeadics, Lisie Hospital, Ernakulam. Ext.X1 certificate of disability issued by Medical Board shows that she has a disability of 15%. She has now deformity and swelling on the right lower leg and pain on walking and she finds it difficult to flex her right knee. 9. The Tribunal awarded a total compensation of Rs.29,206/-. Break up of the compensation awarded is as under:- Damage to clothing : Rs. 250/- Transport to hospital : Rs. 1,000/- Medical expenses : Rs. 2,956/- Pain and suffering : Rs.15,000/- Loss of amenities : Rs.10,000/- and enjoyment of life. ------------------ Total : Rs.29,206/- ======= 10. The learned counsel for the appellant points out that no compensation was awarded for the disability caused. The claimant as PW3 testified that she used to earn Rs.1,500/-per month. As no evidence was adduced to show MACA 874/2005 5 her monthly income, we feel that her monthly income can reasonably be fixed at Rs.1,250/-. Percentage of disability certificate by the Medical Board in Ext.X1 appears to be reasonable. The multiplier that can be adopted in this case is 17, as she was aged 31 at the time of the accident. Thus, for the disability caused the claimant is entitled to a compensation of Rs.38,250/- (Rs.1,250/- x 12 x 17 x 15%). 11. There is another aspect in this case. No compensation was awarded for loss of earnings. Nature of the injury sustained by the claimant shows that she must have disable for six months, for which she is entitled to a compensation of Rs.7,500/- i.e., six months at the rate of 1250/- per month. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. There is another aspect in this case. For filing appeal, there was a delay of 1482 days. The claimant is not entitled to interest during that period. 13. In the result, the claimant is entitled to an MACA 874/2005 6 additional compensation of Rs.48,750/-. She is entitled to interest @ 9% from the date of petition till realization, except for the above said period of 1482 days. The third respondent being the insurer of the offending Maruthi car 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