IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 MACA.No. 833 of 2004() ---------------------- [ OPMV.2006/1998 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA] .................... APPELLANT/PETITIONER: ----------------------------------------- NASUMUDDIN, S/O.HASSANAKUTTY, CHAKKALA VADAKKATHIL VEEDU, PALLANA, THRIKKUNNAPUZHA VILLAGE, KARTHIKAPPALLY TALUK, ALAPUZHA. BY ADV. SRI.JOHN BRITTO SRI.C.A.RAJEEV RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. KUNJUMON,S/O.CHELLAPPAN K., PUTHUVAL VEEDU, THOTTAPPALLY P.O., ALAPUZHA. 2. MUHAMMAD IQUBAL, S/O.A.S.SAYED MUHAMMED, ULLAPPALLY PUTHENPURA, PERUMBAVOOR,MUVATTUPUZHA. 3. THE ORIENTAL INSURANCE CO.LTD. REPRESENTED BY ITS BRANCH MANAGER, ALAPPUZHA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. No. 833 OF 2004 --------------------------------------- DATED THIS THE 31ST DAY OF MARCH, 2011 JUDGMENT ----------------- Barkath Ali, J. Appellant is the claimant in O.P.(MV)No. 2006/1998 on the file of Additional Motor Accidents Claims Tribunal, Alappuzha. In this appeal, he challenges the judgment and award of the Tribunal dated June 16, 2003 awarding a compensation of ` 35,000/- to the claimant for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on August 22,1997 at 10.30 a.m. at Chengankulangara on the Alappuzha-Kollam National Highway. The claimant was travelling in the cabin of a mini lorry driven by the 1st respondent. When the mini lorry reached at Changankulangara, the first respondent suddenly turned the vehicle, as a result of which, the left door opened and the claimant was thrown out from the lorry and fell on the road. He sustained the following injuries in the accident. i) Complete hearing loss on the left ear ii) Right parieto tempero occipital subdural haematoma iii) Left lower motor neuron facial palsy iv) Complete loss of hearing of the left ear and mild low frequency sensory neural hearing loss on the right ear. M.A.C.A. No. 833 OF 2004 2 3. Alleging negligence against the 1st respondent, the driver of the mini lorry, the claimant filed the O.P. before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of ` 2,00,000/-. Respondents 1 and 2, driver and owner of the offending mini lorry remained absent. The 3rd respondent, insurer of the offending mini lorry filed a written statement admitting the policy. 4. The Claimant was examined as PW1 and Exts. A1 to A11 were marked on his side before the Tribunal. No evidence was adduced by the contesting 3rd respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the first respondent and awarded a compensation of ` 35,000/- with interest at the rate of 7.5% per annum from the date of petition till realization and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and counsel for the Insurance Company. M.A.C.A. No. 833 OF 2004 3 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the 1st 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 ` 35,000/-. The counsel for the claimant sought enhancement of the compensation for pain and suffering endured, for loss of amenities and enjoyment of life and on other heads. He appointed out that no compensation was awarded for the disability caused to the claimant. 8. The Tribunal did not award any compensation for the disability caused to the claimant. Ext.A11 certificate of disability issued by the doctor shows that the claimant has suffered a permanent disability of 30% on account of the sensori-neural deafness. It is stated therein that the claimant has recurrent vertigo, tinnitus and headache. Taking into consideration the above aspect, we feel that his percentage of disability can be reasonably fixed at 20%. The claimant is a fish merchant, aged 23 years and earning to ` 3,000/- per month according to him. M.A.C.A. No. 833 OF 2004 4 Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at ` 2,500/-. As he was aged 23 at the time of accident, we feel that a multiplier of 17 would be reasonable in this case. Thus calculated for the loss of disability caused, the claimant is entitled a compensation of ` 1,02,000/-. 9. The Tribunal did not award any separate compensation for pain and suffering endured or for loss of amenities and enjoyment of life. Taking into consideration the nature of injuries sustained by the claimant, we feel that a compensation of ` 20,000/- for pain and suffering endured and ` 15,000/- for loss of amenities and enjoyment of life would be reasonable. 10. No separate compensation was seen awarded by the Tribunal for loss of earnings. Having regard to the nature of injuries sustained by the claimant, we feel that a compensation of ` 7500/- ie. @ ` 2500/- per month for three months would be reasonable on this count. 11. There is another aspect in this case. The Tribunal awarded a compensation of ` 35000/-. The said amount can be treated as compensation for treatment expenses and other M.A.C.A. No. 833 OF 2004 5 miscellaneous expenses incurred by the claimant. In the result, the appellant/claimant is found entitled to an additional compensation of ` 1,44,500/-. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization on the compensation already awarded and also for the enhanced compensation. The 3rd 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 PKK