IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 MACA.No. 2332 of 2007() ------------------------------------ OPMV.338/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL (PRINCIPAL), KOZHIKODE .................... APPELLANT/PETITIONER ------------------------------------- P.A. MOIDEENKUTTY, AGED 39 YEARS, SON OF AHAMED KUTTY, THONDAMMALAYIL, KAITHAPOYIL POST, THAMARASSERY, KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM RESPONDENTS/RESPONDENTS 1 & 3: -------------------------------------------------------- 1. THE MANAGING PARTNER, WYNADU TRANSPORT LIMITED, 3/388, S. BATTERY, WAYANADU DISTRICT. 2. M/S.NATIONAL INSURANCE CO. LTD KALPETTA, WYNADU DISTRICT. R2 BY ADV. SRI.JOE KALLIATH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2332 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 28th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.338 of 1998 on the file of the Motor Accidents Claims Tribunal (Principal), Kozhikode. In this appeal he challenges the judgment and award of the Tribunal dated November 8, 2005 awarding a compensation of ` 98,650/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on November 17, 1997 at about 3.30 p.m. at Padanilam. While the claimant was driving a mini lorry bearing registration No.KL-11-C-903 from Calicut to Puthupadi, a bus bearing registration No.KLW 3060 came from the opposite direction and dashed against the mini lorry. As a result of the accident the claimant sustained the following injuries:- 1) Compound fracture of both bones of left leg. 2) Abrasion of 6 x 3 cm. on the left fore-head. MACA 2332/2007 2 3) Abrasion on left fore-arm. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of `2,50,000/- 3. Respondents 1 and 2, the owner and the driver of the offending bus, remained absent before the Tribunal. The third respondent, the insurer of the offending bus, filed a written statement admitting the policy. Exts.A1 to A60 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 the negligence of the second respondent and awarded a compensation of ` 98,650/- with interest @ 6% p.a. from the date of petition till realization and a cost of ` 750/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. MACA 2332/2007 3 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second respondent 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. 6. The Tribunal awarded a total compensation of `98,650/-. Break up of the compensation awarded is as under:- Pain and suffering : ` 18,000 Hospitalization charges etc. : ` 27,000 Incidental expenses including : ` 4,000 transportation charges and expenses for extra nourishment. Loss of amenities and : ` 5,000 inconvenience caused. Loss of earning : ` 6,000 Damage to clothing : ` 250 Disability : ` 38,400 ------------------ Total : ` 98,650 ======= 7. The counsel for the claimant sought enhancement of compensation for pain and suffering endured, loss of amenities and enjoyment in life and for the disability caused. 8.The Tribunal awarded ` 18,000/- for pain and suffering MACA 2332/2007 4 endured by the claimant and ` 5,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of ` 25,000/- for pain and suffering and ` 10,000/- for loss of amenities and enjoyment in life would be reasonable. 9. The Tribunal took the monthly income of the claimant as ` 2,000/-, took the percentage of disability as 10%, adopted multiplier of 16, as certified by the Medical Board in Ext.C1 and awarded a compensation of Rs.38,400/- for disability caused. The claimant was working as a driver earning ` 3,000/- per month, according to him. As he was a driver by profession, we feel that his monthly income can reasonably be fixed at ` 2,750/-. Percentage of disability assessed by the Tribunal as 10% and multiplier adopted as 16 are not seriously challenged. Therefore, the claimant is entitled to a compensation of ` 52,800/- (` 2,750/- x 12 x 16 x 10%) for the disability caused. Thus the claimant is entitled to an additional compensation of `14,400/- on this count. As regards the MACA 2332/2007 5 compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 10. In the result, the claimant is found entitled to an additional compensation of ` 26,400/-. He is entitled to interest @ 7.5% per annum instead of 6% for the compensation already awarded and also for the enhanced compensation from the date of pettion till realization. The third respondent being the insurer of the offending vehicle 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 MACA 2332/2007 6