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 28TH MAY 2010 / 7TH JYAISHTA 1932 MACA.No. 334 of 2004() ---------------------- OP.341/1999 of ADDL. DISTRICT COURT, PARAVUR .................... APPELLANT/PETITIONER: ----------------------------------- ABRAHAM JOSEPH, S/O. V.J.JOSEPH, VAZHUVELIL HOUSE, VALLUVALLY, KONNAMMAVU P.O., ERNAKULAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): RESPONDENTS: --------------------------- 1. BALAKRISHNAN NAIR, PUTHEYEDATHU HOUSE, AMMANKOVIL ROAD, PARAVUR VILLAGE, PARAVUR TALUK. 2. UNITED INDIA INSURANCE COMPANY LIMITED, MUNICIPAL BUILDING, MAIN ROAD, NORTH PARAVUR. ADV. SRI.S.RAJEEV FOR R1 SRI.M.A.HAKIM SHAH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.334 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.341/1999 of Motor Accidents Claims Tribunal, North Paravur challenges the judgment and award of the Tribunal dated August 28, 2003 awarding a compensation of Rs. 1,05,300/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was aged 32 at the time of the accident and was working as a site in-charge of the construction company of PW1 M/s. K.G.Thomas and Company earning Rs.5,000/- per month, according to him. On August 10, 1998, claimant was riding his motor cycle bearing Reg.No.KL7/G 2121 along with his friend as pillion rider. When they reached near Kottappuram toll gate, another motor cycle bearing Reg.No. KL 7 B 9247 ridden by the first respondent came from back MACA.No.334/2004 2 side and dashed against the motor cycle of the claimant. Claimant and his friend sustained injuries. According to the claimant, accident occurred due to the rash and negligent riding of the offending motor cycle by first respondent. First respondent as the owner cum rider of the offending motor cycle and second respondent as its insurer are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 3 lakhs. 3. First respondent as the owner cum rider of the offending motor cycle did not file any written statement. Second respondent, the insurer of the offending motor cycle filed a written statement admitting the policy, but contended that the accident occurred due to the negligence of the claimant. 4. Pws 1 to 3 were examined and Exts.A1 to A13 series were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence awarded a compensation of Rs.1,05,300/-. 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 MACA.No.334/2004 3 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 question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries as revealed from Ext.A9 series and Ext.A12 series discharge cards issued from Medicare Hospital, Kodungalloor. 1. Communited fracture of lateral condyle right tibia. 2. dislocation of MCP joint left thumb. 3. Lacerated wound zygamatic area and multiple abrasion on toe and right knee. 8. He was admitted in the hospital on 10/08/1998 and was discharged on 26/08/1998. Again he was admitted on 7-09-1998 and was discharged on 12/09/1998. Ext.A12, another discharge card issued from the hospital, shows that he was again admitted on 12/04/2000 and was discharged on 22/04/2000. Ext.A8 is his salary certificate which shows that he was working as a site in-charge of the construction MACA.No.334/2004 4 company of PW2 M/s.K.G.Thomas and Company and was earning Rs. 5,000/- per month. 9. The Tribunal awarded a total compensation of Rs.1,05,300/-. The break up of the compensation awarded is as under : Transportation expenses - Rs. 2,000/- Loss of earnings - Rs. 16,000/- Medical expenses - Rs. 30,800/- Bystander expenses - Rs. 1,500/- Pain and suffering - Rs. 15,000/- Loss of expectation of life - Rs. 10,000/- Disability - Rs. 30,000/- 10. Counsel for the claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs. 4,000/-. Ext.A7, the certificate of disability shows that the claimant has suffered a disability of 15%. PW2, the doctor who issued Ext.A7 also testified to that effect. Taking into consideration the above aspect, the Tribunal awarded a compensation of Rs. 30,000/- for the disability caused. On going through Ext.A7, it is seen that the claimant is still now limping. It is further stated in Ext.A7 that there is restriction of movement of right MACA.No.334/2004 5 knee beyond 100 degree, moderate pain and wasting of thigh muscles. Taking into consideration these aspects, we feel that a compensation of Rs. 45,000/- would be reasonable for the disability caused. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 15,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. In the result, the claimant is entitled to an additional compensation of Rs. 15,000/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The second respondent being the insurer of the offending vehicle 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.334/2004 6 MACA.No.334/2004 7