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 25TH MARCH 2010 / 4TH CHAITHRA 1932 MACA.No. 1060 of 2005() --------------------------------- OPMV.1378/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/CLAIMANT: ----------------------------------------------------------- NAIZAM, AGED 29 YEARS, W/O. V.P. SEETHI, VILANGATTU HOUSE, KUMBALAM, COCHIN-682 506. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): RESPONDENTS /RESPONDENTS ------------------------------------------------------------------------ 1.P.S. SHAMI, S/O. SAINALABDEEN, PARAPARAMBATH HOUSE, MADAVANA, PANANGAD P.O. 2.P.F. JOHN, S/O. FRANCIS, PULIPARAMBIL HOUSE, WEST OF BYE-PASS BRIDGE, KANNADIKADU, MARADU P.O. 3.NATIONAL INSURANCE COMPANY LIMITED BY ITS REGL.MANAGER, REGL.OFFICE, MUTHOOT TOWERS, M.G. ROAD, COCHIN-35. 4.AMBIKA, W/O. ACHUTHAN NAIR, AMBATTU HOUSE, EAST KADUNGALLUR, ALUVA. 5.SHAJU MATHEW, S/O. MATHAI, KUZHIKATTU KUNNEL VEETTIL, NORTH OF VENGOLA SCHOOL, VENGOLA P.O., PERUMBAVOOR-683 554. 6.NATIONAL INSURANCE COMPANY LIMITED BY ITS REGL.MANAGER, REGL.OFFICE, MUTHOOT TOWERS, M.G. ROAD, COCHIN-35. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pkk A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A NO. 1060 OF 2005 ----------------------------------------- DATED THIS THE 25TH DAY OF MARCH 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV) No. 1378/96 on the file of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated May 31, 2003 awarding a compensation of Rs. 91,550/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these; The appellant/claimant was aged 20 at the time of accident and was employed as Conductor in the bus bearing registration No. KL-7/G 6505 earning Rs. 2500/- per month, according to him. On February 10, 1995 at about 7.30 P.M, claimant was travelling as a conductor in the bus bearing registration No. KL-7/ G 6505 along Ernakulam – Palarivattom National Highway. When it reached near Kalamassery Premier M.A.C.A NO. 1060 OF 2005 2 Ground another bus bearing registration No. KL-7/ D 6507 came at a high speed from the opposite direction and dashed against the bus in which the claimant was travelling. The claimant sustained serious injuries. According to the claimant, accident occurred due to rash and negligent driving of the bus KL-7/G 6505 by its driver, the 2nd respondent. The first respondent as the owner , the 2nd respondent as the driver, the 3rd respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs. 2 lakhs. 3. Respondents 1 and 2, the owner and driver of the bus bearing registration No. KL-7/ G 6505 remained absent and was set ex-parte by the Tribunal. The 3rd respondent, insurer of the said bus filed written statement admitting the policy but contending that accident occurred due to the negligence on the part of the driver of the other bus. The owner, driver and insurer of the bus bearing registration No. KL-7 D/ 6507 was subsequently impleaded as additional respondents 4 to 6. Respondents 4 and 5 remained absent and was set ex-parte by the Tribunal. The 6th respondent is the very same Insurance M.A.C.A NO. 1060 OF 2005 3 Company. This O.P (MV) was jointly tried along with other OP (MV) Nos. 264/96, 2882/96 and 3774/1997 filed by the injured persons of the same accident and a common award was passed by the Tribunal. 4. PWs 1 to 4 were examined and Exts. A1 to A26 were marked on the side of the claimant. No evidence was adduced by the contesting respondents. On an appreciation of evidence the Tribunal awarded a compensation of Rs. 91,550/-. The claimant has now come up in appeal challenging the quantum of compensation awarded. 5. Heard the counsel for the appellant/ claimant and the 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 2nd respondent, the driver of the offending bus 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 claimant sustained the following injuries as seen from Ext. A4, the copy of the wound certificate issued from the M.A.C.A NO. 1060 OF 2005 4 Medical Trust Hospital, Ernakulam. (i)Incised wound over (Rt) parietal region. (ii)Linear fracture of left parietal bone (iii)Extradural haematoma which was evacuvated after craniotomy. Ext. A5 is the Medical certificate, Ext.A9 is the treatment certificate, Ext. A8 series are the photographs showing the surgical mark on the head. Ext. A15 is the disability certificate issued by the Medical Board, which shows that the claimant is suffering from permanent disability of 20%. According to the Medical Board the claimant is now suffering from headache, giddiness, sleep disturbance, memory defects and convulsions. 8. The Tribunal awarded a total compensation of Rs. 91,550/-. The break up of the award amount is as under: Transportation to hospital Rs. 500/- Damage to clothings Rs. 250/- Extra nourishment Rs. 500/- Attended expense Rs.1000/- Loss of earnings Rs.8000/- ( 4 months at the rate of 2000/- per month) Treatment expense Rs.22,500/- Pain and suffering Rs.12,000/- Loss of amenities and ) Rs. 6,000/- enjoyment of life ) For the disability caused Rs.40,800/- M.A.C.A NO. 1060 OF 2005 5 9. The counsel for the claimant sought enhancement of the compensation for the disability caused, for pain and suffering endured and loss of amenities and enjoyment of life. 10. The Tribunal took the monthly income of the claimant as Rs. 2,000/- and assessed his disability as 10% and adopted a multiplier of 17 and awarded a compensation of Rs. 40,800/- for the disability caused. The Counsel for the appellant argued that the Tribunal should have taken disability as 20% as shown in Ext. A15 disability certificate issued by the Medical Board. We are unable to agree. Taking into consideration of the disability mentioned in Ext. A15 we feel that the percentage of disability taken as 10% by the Tribunal appears to be reasonable. Therefore on this count the claimant is not entitled to any enhanced compensation. 11. For the Pain and suffering, the Tribunal awarded Rs. 12,000/- which appears to be very low. Taking into consideration of the nature of the injuries sustained, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Thus the claimant is entitled to an additional compensation of Rs. M.A.C.A NO. 1060 OF 2005 6 3,000/- on this count. 12. For the Loss of amenities and enjoyment of life, the Tribunal awarded a compensation of Rs. 6,000/- which appears to be inadequate. Having regard to the nature of injuries sustained, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. Thus the claimant is entitled to an additional compensation of Rs. 4,000/- on this count. 13. There is another aspect in this case. Ext.A8 series of photographs shows that claimant has some disfigurement on the face, for which we feel that a compensation of Rs. 5,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable. Therefore, we are not disturbing the same. 14. Thus the claimant is entitled to an additional compensation of Rs. 12,000/-. He is entitled to interest @ 9% per annum from the date of petition till realization and appropriate cost. 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 M.A.C.A NO. 1060 OF 2005 7 extent. The Appeal is disposed of as found above. A.K. BASHEER (JUDGE) P.Q. BARKATH ALI (JUDGE) pkk