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 14TH FEBRUARY 2011 / 25TH MAGHA 1932 MACA.No. 1807 of 2005() ----------------------- OPMV.701/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANT/3RD RESPONDENT IN THE O.P. -------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, BEAUTY PLAZA, BALMATTA ROAD, MANGALORE, REP. BY THE ADMINISTRATIVE OFFICER, THE OREINTAL INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, OPP.NORTH RAILWAY STATION ERNAKULAM, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENTS/CLAIMANT & RESPONDENTS 1 AND 2 --------------- 1. VIJAYAN, S/O. LATE RAMA NAIK, NEKKARE PADAVU, BADOOR, MAIRE, KASARAGOD TALUK. 2. JANARDHANA BANGERA, LORRY DRIVER KUMBALA HOUSE, KOTEKAR POST, MANGALORE (D.K.). 3. A.J. VISWANATH RAI, S/O. A. JATHAPPA RAI PROP.M/S. DURGAMBIKA ENGINEERING WORKS KOTTARA, MANGALORE-6. ADV. SRI.M.RAMESH CHANDER FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1807 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the third respondent Insurance Company in O.P. (MV)No.701/2002 on the file of Motor Accidents Claims Tribunal, Kasargod. In this appeal the appellant challenges the judgment and award of the Tribunal dated June 14, 2005 awarding a compensation of Rs. 1,42,446/- to the claimant for the loss caused to him on account of the injuries sustained by him in a motor accident that occurred on December 29, 2000 at about 11.30 P.M. 2. The accident happened while the claimant was travelling in the lorry bearing Reg.No.CNG 5809 driven by the first respondent as a cleaner and when he reached near Poinachi 55th mile, the lorry dashed against a tree on the side of the road. Alleging negligence against the first respondent in the O.P., the claimant filed the O.P. before the Tribunal claiming a compensation of Rs. 5,00,000/-. 3. Respondents 1 and 2 in the O.P., the driver and the owner MACA.No.1807/2005 2 of the offending lorry remained absent before the Tribunal. The third respondent/appellant, the insurer of the offending lorry filed a written statement admitting the policy. 4. Exts.A1 to A7 series and Ext.X1 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the third respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the first respondent in the O.P. and awarded a compensation of Rs.1,42,446/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant Insurance Company and the counsel for the claimants. 6. The accident is not disputed. The question which arises for consideration in this case is whether the compensation awarded by the Tribunal is excessive and if so, what is the compensation the claimant is entitled to. MACA.No.1807/2005 3 7. The claimant sustained the following injuries in the accident : 1. Fracture of right thigh. 2. Fracture of right patella. 3. Injury on the right great toe and other grievous injuries. 8. The Tribunal awarded a total compensation of Rs. 1,42,446/- . The break up of the compensation awarded is as under : Loss of income - Rs. 15,000/- Transport to hospital - Rs. 1,000/- Extra nourishment - Rs. 2,000/- Damage to clothing - Rs. 200/- Treatment expenses - Rs. 2,146/- Pain and suffering - Rs. 15,000/- Loss of earning power - Rs.1,07,100/- 9. The Tribunal took the monthly income of the claimant as Rs. 1500/-, took the percentage of disability as 35% and adopted a multiplier of 17 and awarded Rs.1,07,100/- towards loss of earning power which appears to be excessive. The Medical Board has assessed the disability of the claimant as 35%. The disability assessed was of right lower limb functioning. Therefore, the Tribunal is not justified in accepting the same for assessing the compensation for disability MACA.No.1807/2005 4 caused. Taking into account the nature of the injury sustained by the claimant, we feel that his whole body disability can be reasonably fixed at 10%. According to the claimant, he was a cleaner of the lorry earning Rs.4,500/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs.2,500/-. The multiplier adopted by the Tribunal as 17 appears reasonable. Thus calculated, for loss of earning power, the claimant is entitled to a compensation of Rs.51,000/-. 10. The Tribunal awarded Rs.15,000/- towards loss of income for ten months. As we have fixed the monthly income of the claimant as Rs.2,500/-, he is entitled to a compensation of Rs. 25,000/- towards loss of income. 11. No compensation is seen awarded for loss of amenities and enjoyment in life. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. MACA.No.1807/2005 5 12. In the result, the first respondent/claimant is found entitled to a compensation of Rs.1,06,346/- instead of Rs.1,42,446/- awarded by the Tribunal. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The appellant 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. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1807/2005 6