IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 MACA.No. 237 of 2004() ---------------------- OPMV.1057/1997 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/PETITIONER ------------------------ C.P. ALOCIOUS S/O. C.V. PETER, AIYANAMPARAMBU VEEDU, CMC 22, NEAR PROVIDENCE THEATRE, CHERTHALA. BY ADV. SRI.T.B.SARASAN SRI.M.V.BAIJU RESPONDENTS/RESPONDENTS : --------------- 1. PRADEEPKUMAR, S/O. HARIPRASAD, KOYYATHARA VEEDU, NAMMUPURAM, COCHIN DIVISION-19. 2. BABU. K. JOSPEH, KAITHADATHIL HOUSE, PIRAVOM, KOTTAYAM DISTRICT. 3. NATINAL INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, ALAPPUZHA. ADV. SRI.JOE KALLIATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.237 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of May, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1057/1997 on the file of Motor Accidents Claims Tribunal, Alappuzha . In this appeal he challenges the judgment and award of the Tribunal dated May 22, 2003 awarding a compensation of Rs.70,500/- 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 February 24, 1997 at about 5.30 p.m. : Lacerated injury over ( L) side of scalp over the parietal area ( 1 x 1 cm) scalp deep. Lacerated wound over the back of ( R) elbow 2 x 1 x 1 cm. Lacerated wound over the ( R) leg protruding over the lower aspect anterior. Compound comminuted fracture both bone ( R) leg and head injury. 2. The accident happened while the claimant was travelling in a Maruthi van bearing Reg.No.KL-4B 5960 along Cherthala- Ernakulam NH and when he reached near Puthiakavu temple, the MACA.No.237/2004 2 Maruthi van dashed against a lorry bearing Reg.No.NL-01-A-2599 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,50,000/-. 3. Respondents 1 and 2, the driver and the owner of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy. 4. PW1 was examined and Exts.A1 to A13 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 found that the accident occurred due to the rash and negligent driving of the offending lorry by first respondent and awarded a compensation of Rs. 70,500/- with interest @ 9% per annum from the date of petition till realisation and a cost of Rs.500/-. 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.237/2004 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 Tribunal awarded a total compensation of Rs.70,500/-. The break up of the compensation amount awarded is as under: Loss of earning - Rs.15,000/- Treatment, medicine & bystander expenses - Rs.20,000/- Transportation - Rs. 3,000/- Pain and suffering - Rs. 7,500/- Disability and loss of amenities - Rs.21,000/- Loss of earning power - Rs. 4,000/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. He pointed out that no compensation was awarded for loss of amenities and enjoyment of life. 9. The Tribunal awarded a compensation of Rs.21,000/- for the disability caused. The Tribunal took the monthly income of the MACA.No.237/2004 4 claimant as Rs.3,000/-. He was aged 38 at the time of accident. In Ext.A11 certificate of disability, it is certified that claimant has a permanent disability of 12% on the right lower limb. Taking into consideration the above facts, we feel that for the disability caused, a compensation of Rs. 35,000/- would be reasonable. 10. The Tribunal did not award any amount for loss of amenities and enjoyment in life. Having regards to the nature of the injuries sustained by the claimant, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. 11. The claimant was conducting a scooter workshop as seen from Ext.A8 licence fee receipt paid to the panchayath in respect of the said concern. Ext.A10 certificate issued by the Tahsildar shows that the annual income of the claimant is Rs.72,000/-. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs.3,500/-. The Tribunal awarded Rs. 15,000/- towards loss of earnings for 5 months @ Rs. 3,000/- per month. But the nature of the injury sustained by the claimant shows that he must have been laid up for nine months. As we have fixed the the monthly income of the claimant as Rs. 3,500/-, he is entitled to a MACA.No.237/2004 5 compensation of Rs. 31,500/- ( 3500 x 9) towards loss of earnings. Thus on this count, the claimant is entitled to an additional compensation of Rs. 16,500/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 40,500/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third 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.237/2004 6 MACA.No.237/2004 7