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 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 MACA.No. 38 of 2005() --------------------- OPMV.629/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SUBRAMANYAN, S/O.V.C.MAKOTHA, VILAKKATH HOUSE, KUKKULISSERY VILLAGE, ERAVATHOOR POST, MALA, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.SREEKANTH.K.R RESPONDENT(S): RESPONDENTS -------------------------- 1. RALF, S/O.KOCHUVARKEY, VARKKY HOUSE, CHAMAKUNNU DESOM, VELLAMKALLUR. 2. GENERAL MANAGER, KERALA STATE TRANSPORT CORPORATION, THIRUVANANTHAPURAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.38 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.629/1998 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal, he challenges the judgment and award of the Tribunal dated October 19,2004 awarding a compensation of Rs.21,785/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on September 29, 1997 at about 6.45.p.m. : Lateral condyle right humerus, compound fracture, lacerated wound over left elbow and lower elbow bone. 2. The accident happened while the claimant was travelling in a KSRTC bus bearing Reg.No.KL-15/562 from Aluva to Mala. When he reached at Desom, due to the negligence of the driver of the bus, the first respondent, it collided head on with a lorry. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a MACA.No.38/2005 2 compensation of Rs. 1,50,000/-. 3. The first respondent, the driver of the offending bus remained absent before the Tribunal. The second respondent, the KSRTC, filed a written statement admitting the accident, but attributed negligence to the driver of the lorry. 4. Pws 1 and 2 were examined and Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending bus by first respondent and awarded a compensation of Rs. 21,785/- with interest @ 6% 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 first respondent is not challenged in this appeal. Therefore, the only MACA.No.38/2005 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 : Loss of earning - Rs. 3,000/- Transportation - Rs. 300/- Extra nourishment - Rs. 1,000/- Medical expenses - Rs. 2,005/- Permanent disability - Rs. 6,480/- Pain and suffering - Rs. 6,000/- Loss of amenities - Rs. 3,000/- 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/- and the percentage of disability as 2% and adopted a multiplier of 18 and awarded Rs. 6,480/- for the disability caused. According to the claimant, he is a welder and employed in a body building work shop and used to earn Rs.3,000/- per month. Exts.A7 and A8 are certificates to that effect. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. The Tribunal took the percentage of MACA.No.38/2005 4 disability of the claimant as 2%. In A1 disability certificate, PW2, the doctor who issued the same, certified that the claimant has a permanent disability of 20%. Taking into consideration the nature of the disabilities caused to the claimant, we feel that the percentage of disability certified by the doctor PW2 in Ext.A1 can be accepted. The multiplier adopted by the Tribunal as 18 is not seriously challenged in this appeal. Thus, calculated for the disability caused, the claimant is entitled to a compensation of Rs. 1,08,000/- ( 20% x 2500 x 12 x 18). Thus on this count, the claimant is entitled to an additional compensation of Rs.1,01,520/-. 10. The Tribunal awarded Rs.6,000/- for pain and suffering endured and Rs.3,000/- for loss of amenities and enjoyment in life which appear to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 15,000/- for pain and suffering endured and Rs. 15,000/- for loss of amenities and enjoyment in life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. There is another aspect in this case. The Tribunal awarded MACA.No.38/2005 5 interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 1,22,520/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation and proportionate cost. The second respondent 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 sv. MACA.No.38/2005 6 MACA.No.38/2005 7