IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 MACA.No. 319 of 2004() ---------------------- OPMV.277/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER: ----------------------------------- SERJO, S/O. MATHEW, AGED 33 YEARS, RESIDING AT THURUTHIPPILLY HOUSE, AVOLYKARA, MUVATTUPUZHA VILLAGE. BY ADV. SRI.K.JAJU BABU SRI.M.V.BIPIN RESPONDENT(S): RESPONDENTS: --------------------------- 1. KURIAKOSE, S/O. MATHAI, MATTATHIL VEEDU, NEDUMKANDAM. 2. C.M.RASHEED, CHEMBILAVALAPPIL HOUSE, RAYONPURAM P.O., KANJIRAKKADAVU, PERUMBAVOOR. 3. JOSE, S/O. VARGHESE, KAPPIL VEEDU, MAWARA CITY KARA, UDUMBANCHOLA. 4. THE ORIENTAL INSURANCE CO.LTD., KOTHAMANGALAM. ADV. SRI.ANCHAL C.VIJAYAN FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.319 of 2004 -------------------------------------- Dated this the 12th day of November, 2008. JUDGMENT Thomas P.Joseph, J. Appellant suffered grievous injuries in a motor vehicle accident on 7.6.1999. While he was riding a motor cycle from Muvattupuzha to Avoly and reached the place of occurrence, jeep driven by the third respondent and insured with the fourth respondent came from the opposite side and hit him. The jeep was insured in the name of the second respondent. The first respondent is its registered owner. Alleging that accident occurred due to the rashness and negligence of the third respondent, appellant filed application claiming Rs.4 lakhs as compensation. Learned Tribunal found that accident occurred due to the rashness and negligence of the third respondent and awarded Rs.1,09,800/- as compensation to be realized from the respondents. Fourth respondent was directed to deposit the said amount with 9% interest per annum. Dissatisfied with the quantum of compensation, appellant has preferred this appeal. 2. Heard. 3. The finding of the learned Tribunal on the issue regarding rashness and negligence having become final, what survives for consideration and decision in this appeal is whether the appellant is entitled to get any additional amount as compensation. It is contended by learned counsel that monthly MACA No.319/2004 2 income of the appellant fixed by the Tribunal is low, no amount was awarded for disability and consequent loss of earning power and that compensation awarded on all counts is low. 4. Appellant was aged 30 years at the time of accident. He claimed that he is engaged in pinapple cultivation and earning Rs.4,000/- per month. Observing that there is no acceptable evidence for that, learned Tribunal fixed the monthly income as Rs.1,500/-. Though, no documentary evidence regarding income is produced by the appellant, considering his age, nature of occupation and even the wages paid to labourers during the relevant time, we are inclined to think that appellant could have, by his effort earned atleast Rs.100/- per day for 25 days in a month, bringing his monthly income to Rs.2,500/-. Accordingly the monthly income of the appellant is fixed as Rs.2,500/-. 5. Ext.A6 shows that appellant suffered the following injuries:- “Haematoma occipital region 4 cm dia Bleeding from nose Abrasion upper half of posterior aspect of (R) forearm Abrasion knee left and shin aspect. left.” Ext.A7, discharge summery shows inpatient treatment of the appellant from 7.6.1999 to 24.6.1999. It is revealed by Ext.A7 that appellant sustained linear MACA No.319/2004 3 fracture of skull with right tempero parietal extra dural haematoma, pneumocephalus, etc. Appellant underwent emergency craniotomy and evacuation of right temporo parietal, etc. He was managed with hyper oncotic therapy , anticonvulsants, steroids, etc. Considering the nature of the injuries and period of treatment, it is possible that appellant was not able to work for a period of three months and suffered loss. Compensation payable on that count comes to Rs.7,500/- as against Rs.4,500/- awarded by the Tribunal. Additional compensation payable on that count comes to Rs.3,000/-. 6. Appellant produced Ext.A8 issued by PW2, the doctor who had treated him. Ext.A8 shows that appellant has defective hearing of right ear as he had suffered fracture of right middle coronal fossa. According to PW2, appellant has hearing loss of right ear on account of the injuries sustained in the accident. It is also the version of PW2 that the hearing loss cannot be rectified. PW3, an audiologist stated that appellant has 100% hearing loss with regard to the right ear which was detected by puretone audio metric test. Ext.A9 is the record to support that version of PW3. Learned Tribunal observed in paragraph 14 of the award that the disability suffered by the appellant on account of the above is 7.91% which according to the learned counsel for the appellant is not justified. 7. While considering the disability and consequent loss of earning power, the nature of occupation of the victim has also to be considered. Appellant is an agriculturist. Hearing loss may not directly prevent the appellant MACA No.319/2004 4 from his work as an agriculturist. But the disability will have a bearing on his capacity to work. There is also functional disability. Considering the age of the appellant and also the hearing defect spoken by PWs 2 and 3, we are inclined to fix the disability of the appellant as 10%. Since the appellant was aged 30 years at the relevant time, Tribunal has rightly taken 17 as the multiplier. We found that the monthly income of the appellant at the relevant time was Rs.2,500/-. Thus, compensation payable for disability and consequent loss of earning power comes to Rs.51,000/- [(2500 x 12 x 10 x17)/100]. Learned Tribunal has awarded only Rs.24,000/- on the head of disability and loss of earning power. Less that amount, additional compensation payable on that count comes to Rs.27,000/-. Appellant was only 30 years at the relevant time. Loss of hearing of the right ear affected his enjoyment of amenities of life. Considering the age of the appellant, nature of hearing defect and its extent, we award Rs.5,000/- as compensation for enjoyment of amenities of life. 8. Though it is contended by the learned counsel that compensation awarded on other counts is also low, considering the total amount of compensation to which the appellant is found entitled, we are not inclined to accept that contention. The additional compensation payable to the appellant comes to Rs.35,000/-. That amount will carry interest at the rate of 7.5% per annum. Resultantly this appeal is allowed in part. Over and above the compensation already awarded, appellant is allowed to recover a further sum of MACA No.319/2004 5 Rs.35,000/- (Rupees Thirtyfive thousand only) with interest at the rate of 7.5% per annum from the date of application till realization from respondents 1 to 4 jointly and severally. Fourth respondent being the insurer of the offending vehicle is directed to deposit that amount before the Tribunal within one month from this day. On such deposit, appellant is permitted to withdraw the same. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks