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 5TH JANUARY 2011 / 15TH POUSHA 1932 MACA.No. 630 of 2007() ----------------------------- OPMV.9/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA WAYANAD .................... APPELLANT/PETITIONER ------------------------------ ABDUL RASHEED K., S/O. ABDUL JABBAR, KOTTAKKUNNU HOUSE, ANDOOR, VADUVANCHAL POST, S.BATHERY TALUK, WAYANAD DISTRICT. BY ADVS. SRI.GRASHIOUS KURIAKOSE SMT.CELINE JOSEPH RESPONDENT(S): RESPONDENTS --------------------------------------- 1. AJITH, S/O. ELIYAS, AMBATTU KUDIYIL HOUSE, KUPPAKOLLY, AMBALAVAYAL AMSOM, S.BATHERY TALUK. 2. K.M.RAMAKRISHNAN, S/O. NARAYANAN, KARIPPEL HOUSE, VIMALA NAGAR POST, MANANTHAVADY TALUK. 3. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., M.G.T.BUILDINGS, KALPETTA. R2 BY ADV. SRI.K.I.SAGEER IBRAHIM R3 BY ADV. SRI.RENIL ANTO KANDANKULATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, ALONG WITH MACA NO. 650 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos. 630/2007 & 650/2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 5th day of January, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Motor Accidents Claims Triunal, Kalpetta, Wayanad in O.P.(MV) No.9 of 2203 dated December 1, 2006. 2. The O.P. was filed by the claimant under section 166 of the Motor Vehicles Act claiming a compensation of Rs.1,50,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. The Tribunal awarded a total compensation of Rs.32,704/- with interest @ 6% per annum from the date of petition till realization. 3. In M.A.C.A. No.630 of 2007 the claimant in the O.P. challenges the quantum of compensation awarded by the Tribunal and claimed enhancement of the compensation. In M.A.C.A. No. 650 of 2009 the 2nd respondent in the O.P. who MACA 630/2007 & con. case 2 was the owner of the offending vehicle challenges the finding of the Tribunal allowing the Insurance Company to recover the compensation awarded from him. 4. The accident happened on November 17, 2002 at about 6.30 p.m. at Ambalavayal. While the claimant was pillion riding on a motor cycle bearing registration No.KL.12/A.5242 he was knocked down by a jeep bearing registration No.KL.11/F.97 driven by the 1st respondent. Alleging negligence against the 1st respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.1,50,000/-. 5. The 1st respondent driver of the offending jeep filed a written statement admitting the accident but denied the liability. The 2nd respondent owner of the offending jeep remained absent before the Tribunal. The 3rd respondent insurer of the offending jeep filed a written statement admitting the policy but contended that the 1st respondent has no valid driving licence at the time of the accident. The MACA 630/2007 & con. case 3 claimant was examined as PW1 and Exts.A1 to A16 and Ext.C1 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 1st respondent driver of the offending jeep and awarded a compensation of Rs.32,704/- with interest 6% per annum from the date of petition till realization. The Tribunal has also found that first respondent had no valid driving licence at the time of the accident and allowed the third respondent Insurance Company to recover the compensation amount awarded from 2nd respondent the owner of the offending vehicle. The claimant has come up in appeal MACA No.630/2007 challenging the quantum of compensation awarded by the Tribunal and the 2nd respondent owner of the offending jeep has also come up in appeal challenging the finding of the Tribunal regarding the recovery right granted to the 3rd respondent. 6. Heard learned counsel for the appellants in both MACA 630/2007 & con. case 4 the cases and learned counsel for the Insurance Company. 7. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the Insurance Company is entitled to recover compensation awarded from the 2nd respondent in the O.P., the owner of the offending vehicle, can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation ? 8. We shall first consider the question whether the claimant is entitled to any enhanced compensation. The Tribunal awarded total compensation of Rs.32,704/-. Break up of the compensation awarded is this:- Disability : Rs.18,144 Loss of earning : Rs. 1,540 Transport to hospital : Rs. 1,000 Damage to clothing : Rs. 250 Extra nourishment : Rs. 700 Bystander expenses : Rs. 270 Medical expenses : Rs. 3.800 Pain and suffering : Rs. 7,000 ------------------ Total : Rs.32,704 ======= 9. The claimant sustained fracture both bones right leg upper and middle 3rd junction, subluxasion right tibio- MACA 630/2007 & con. case 5 fibula, syndesmosis,abrasion over left ankle, left foot and left thigh region. 10. The learned counsel for the claimant sought enhancement of the compensation for pain and suffering endured and on other heads. The learned counsel for the claimant submits that no compensation was granted for loss of amenities and enjoyment in life and for loss of earning. 11. The Tribunal took the monthly income of the claimant as Rs.2,100/-, took the percentage of disability as 4%, adopted multiplier of 18 as he was aged 28 at the time of the accident and awarded Rs.18,144/- towards disability caused. According to the claimant, as a coolie he used to earn Rs.5,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can reasonably be fixed at Rs.2,500/-. Percentage of disability as 4% as certified by the Medical Board in Ext.C1 appears to be reasonable. The multiplier adopted as 18 is not challenged in this appeal. Thus calculated for the disability caused, the claimant is entitled to a compensation MACA 630/2007 & con. case 6 of Rs.21,600/- (Rs.2,500/- x 12 x 18 x 4%). Thus, the claimant is entitled to an additional compensation of Rs. 3,456/-on this count. 12. The Tribunal awarded Rs.7,000/- for pain and suffering endured, which appears to be very low. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.10,000/- would be reasonable on this count. 13. No compensation was awarded for the loss of amenities and enjoyment in life. Having regard to the nature of the injuries sustained, we feel that a compensation of Rs.5,000/- would be reasonable on this count. 14. The Tribunal has not awarded any compensation for the loss of earning during the period the claimant was laid up. The nature of the injuries sustained by the claimant show that he must have been disabled for three months, for which he is entitled to a compensation of Rs.7,500/- (Rs.2,500/- x 3). MACA 630/2007 & con. case 7 15. The Tribunal awarded interest only at the rate of 6% per annum, which appears o be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded and also for the enhanced compensation. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 16. In the result, the claimant is found entitled to an additional compensation of Rs.18956/-. He is entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded and also for the enhanced compensation. He is entitled to proportionate costs. 17. The 2nd respondent in the O.P., owner of the offending vehicle, has challenged the finding of the Tribunal granting recovery right to the Insurance Company. The 1st respondent driver of the offending vehicle did not produce driving licence and badge either before the Tribunal or MACA 630/2007 & con. case 8 before this Court. The owner did not produce the driving licence of the driver. Therefore, the Tribunal is perfectly justified in granting recovery right to the 3rd respondent Insurance Company. That being so, the finding of the Tribunal that the 3rd respondent Insurance Company can claim reimbursement of the compensation amount awarded from respondents 1 and 2 is confirmed. 18. In the result M.A.C.A. No.630 of 2007 is disposed of as found above and M.A.C.A. No.650/2009 is dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn