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 5TH JULY 2010 / 14TH ASHADHA 1932 MACA.No. 738 of 2004() ---------------------- OPMV.721/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SOORAJ, S/O.KESAVAN NAIR, RESIDING AT MANGALATH HOUSE, VANIYAMKULAM, OTTAPALAM, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): RESPONDENTS -------------------------- 1. SAKKEER, S/O. ALAVI, RESIDING AT KONDURKKADU HOUSE, NILAMBUR, MALAPPURAM DISTRICT. 2. ANEESH, S/O.KUMARAN, RESIDING AT OTHALIYIL HOUSE, SOUTH PANAMANNA, OTTAPALAM, PALAKKAD DISTRICT. 3. THE UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, FAIZAL BUILDINGS, MAIN ROAD, OTTAPALAM, PALAKKAD DISTRICT. 4. HARIKRISHNAN, S/O.KESAVAN, RESIDING AT T.K.HOUSE, P.O.KADAMBUR, (VIA) AMBALAPPARA, PALAKKAD DISTRICT. 5. THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, IIND FLOOR, J.R.J. COMPLEX, MAIN ROAD, OTTAPALAM, PALAKKAD DISTRICT. ADV. SRI.VPK.PANICKER FOR R5 SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.738 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.721/2001 of Motor Accidents Claims Tribunal, Ottapalam challenges the judgment and award of the Tribunal dated January 27, 2004 awarding a compensation of Rs.1,68,900/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was aged 19 at the time of the accident and was working as a waiter in a hotel and used to earn Rs.4,000/- per month, according to him. On March 22, 2001 at about 11 p.m., he was pillion riding on the motor cycle bearing Reg.No.KL 8C 4050 and when he reached at Varode near N.S.S. English Medium School, an autorickshaw bearing Reg.No.KL 10 F 3426 came at a high speed and dashed against the motor cycle of the claimant. The claimant sustained serious injuries. According to the claimant, accident occurred due to MACA.No.738/2004 2 the rash and negligent driving of the offending auto rickshaw by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending auto rickshaw are jointly and severally liable to pay compensation to the claimant. The owner cum rider of the motor cycle and its insurer were subsequently made parties in the application as respondents 4 and 5. 3. Respondents 1 and 2, the owner and driver of the offending auto rickshaw remained absent before the Tribunal. The fourth respondent, the owner cum rider of the motor cycle, also remained absent before the Tribunal. The third respondent, the insurer of the offending auto rickshaw filed a written statement admitting the policy and further contended that there was also negligence on the part of the rider of the motor cycle. The fifth respondent, the insurer of the motor cycle of the claimant filed a written statement admitting the policy, but attributed negligence to the second respondent. 4. PWs 1 and 2 were examined and Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending auto rickshaw by MACA.No.738/2004 3 second respondent and awarded a compensation of Rs. 1,68,900/- with interest @ 9% per annum from the date of petition till realisation. 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 counsel for the Insurance Companies. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second 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 claimant sustained the following injuries as revealed from Ext.A4, copy of the wound certificate issued from Metropolitan Hospital, Thrissur : Multiple abrasions over the back of Rt. shoulder, fracture femur Lt. ( L)1/3) fracture both bones Rt.leg upper 1/3, lacerated wound dorsum of Rt. foot, joint exposed, abrasion over Rt.leg. Ext.A7 certificate of disability shows that claimant has a MACA.No.738/2004 4 permanent disability of 17%. 8. The Tribunal awarded a total compensation of Rs.1,68,900/-. The break up of the compensation awarded is as under : Pain and suffering - Rs. 25,000/- Bystander expenses - Rs. 3,600/- Medical bills - Rs. 74,300/- Loss of income - Rs. 12,000/- Disability - Rs. 31,000/- Loss of amenities - Rs. 10,000/- Transportation exp. - Rs. 4,000/- Extra nourishment - Rs. 4,000/- Future treatment - Rs. 5,000/- 9. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 10. The Tribunal took the monthly income of the claimant as Rs.2,000/- and took the percentage of disability as 8% and adopted a multiplier of 16 and awarded Rs. 31,000/- for the disability caused. Claimant claims to be a Waiter in a hotel earning Rs. 4,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs.3,000/-. The percentage of disability as 8% taken by the Tribunal as well as the multiplier as 16 appear to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of MACA.No.738/2004 5 Rs. 46,080/- (8% x 3000 x 12 x 16). Thus on this count, the claimant is entitled to an additional compensation of Rs.15,080/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. In the result, the claimant is found entitled to an additional compensation of Rs. 15,080/-. 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.738/2004 6