IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 MACA.No. 1362 of 2008(G) ------------------------------------- [O.P(M.V).NO.308/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA] .................... APPELLANT/PETITIONER: ------------------------------------- PRADEEP.K.C., KOTHAMAVUNKAL HOUSE, MARANGATTUPALLY KARA, MARANGATTUPILLY P.O. BY ADV. SRI.R.GIRISH. RESPONDENTS: ------------------------ 1. K.K.RAJAN, S/O.KUMARAN, KUNNATHIL HOUSE, THALAYOLAPARAMBU P.O, NEAR CHANDAPPALAM, VDAYAR VILLAGE. 2. SANTHOSH KUMAR, S/O.THANKAPPAN, KALAPURAKALAYIL HOUSE, NEAR GOVERNMENT HOSPITAL, VADAYAR VILLAGE, THALAYOLAPARAMBU KARA. 3. THE NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, KOLENCHERY.. 4. MERIN KURIAKOSE, MADAPPALLY HOUSE, PAZHANGAD, KIZHAKKAMBALAM. R1 BY ADVS. SRI.ALIAS M.CHERIAN, R3 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1362 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 16th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.308 of 2004 on the file of the Motor Accidents Claims Tribunal, Pala. In this appeal he challenges the judgment and award of the Tribunal dated September 12, 2007 awarding a compensation of Rs.4,04,418/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on November 12, 2003 at about 8.45 a.m. at Eruvelikunnu. While the claimant was traveling in a bus bearing registration No. KL-5/E-3425 from Appanchira to Vaikom, a tipper lorry bearing registration No.KL-7/F-6791, driven by the second respondent, came from the opposite side and dashed against the bus, as a result of which, the claimant sustained very serious injuries. Alleging negligence against the second respondent, the claimant filed the O.P. before the MACA 1362/2008 2 Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.12 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending tipper lorry, remained absent and they were set ex parte by the Tribunal. The third respondent, the insurer of the offending tipper lorry, filed a written statement admitting the policy but contended that there was also negligence on the part of the driver of the bus. Exts.A1 to A15 were marked on the side of the claimant. RW1 was examined and Ext.B1 was marked on the side of the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the second respondent and awarded a compensation of Rs.4,04,418/- with interest @ 9% p.a. from the date of petition till realization and cost of Rs.10,600/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the second MACA 1362/2008 3 respondent, driver of the offending tipper lorry, is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 6. The claimant sustained near total crush amputation right elbow level with extensive tissue crushing from middle of the upper arm down to the distal third of forearm with loss of distal half of the humerus, haemovascular sutures and total disruption of elbow. 7. The Tribunal awarded a total compensation of Rs.4,04,418/-. Break up of the compensation awarded is as under:- Medical expenses : Rs. 10,668 Loss of earnings : Rs. 10,000 Bystander's expenses : Rs. 6,000 Extra nourishment : Rs. 500 Damage to clothing : Rs. 250 Transportation expenses : Rs. 1,000 Pain and suffering : Rs. 25,000 Permanent partial disability : Rs. 3,26,000 Loss of amenities : Rs. 25,000 ------------------ Total : Rs.4,04,418 ======= 8. The counsel for the claimant sought enhancement of MACA 1362/2008 4 compensation for the disability caused and on other heads. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/-, adopted a multiplier of 17 as the claimant was aged 31 at the time of the accident, took the percentage of disability as 80% as shown in Schedule-I Part II of Workmen’s Compensation Act and awarded a compensation of Rs.3,26,000/- for the disability caused. The claimant was a Head load worker. Therefore, we feel that his monthly income can reasonably be fixed at Rs.2,500/-. Multiplier adopted by the Tribunal as 17 is not seriously challenged. Right hand of the claimant was amputated at elbow level. As per the Schedule-I Part II to the Workmen Compensation Act, in the case of amputation below shoulder with stump less than 20.32 cms. from tip of acromion, the disability is 80%. Therefore, the Tribunal is perfectly justified in taking the disability as 80%. Thus calculated the claimant is entitled to a compensation of Rs.4,08,000/- (Rs.2,500/- x 12 x 17 x 80%) for the disability caused. Thus the claimant is entitled to an additional compensation of Rs.82,000/- on this count. 10. The Tribunal awarded a sum of Rs.10,000/- towards MACA 1362/2008 5 loss of earnings for five months at the rate of Rs.2,000/-per month. As we have fixed monthly income of the claimant as Rs.2,500/-, he is entitled to a compensation of Rs.12,500/- on this count As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result, the claimant is found entitled to an additional compensation of Rs.84,500/- with interest @ 7.5% per annum from the date of petition till realization. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn.