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 24TH JANUARY 2011 / 4TH MAGHA 1932 MACA.No. 850 of 2004() ---------------------- OPMV.21/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/PETITIONER: ---------------------------------------- D.SIVANKUTTY, SAJEE BHAVAN, OONITUMANDAPAM, VETTINAD, VEMBAYAM, THIRUVANANTHAPURAM. BY ADVS. SRI.RAM MOHAN.G., SRI.G.P.SHINOD, SRI.MANU V. RESPONDENT(S): RESPONDENTS 1 TO 3: --------------------------------------------------------------- 1. M.HASHIM, KISHANGUVILA VEEDU, MANICKAL, VENJARAMOODU, THIRUVANANTHAPURAM. 2. SUNIL KUMAR, S/O.PRABHAKARAN PILLAI, KARIMBUVILA, THADATHARIKATHU VEEDU, PERUMALA, PULLAMPARA, VENJARAMOODU, THIRUVANANTHAPURAM. 3. THE DIVISIONAL MANAGER, NEW INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, PALAYAM, THIRUVANANTHAPURAM. R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 850 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 24th day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.21 of 2000 on the file of the Motor Accidents Claims Tribunal, Attingal. In this appeal he challenges the judgment and award of the Tribunal dated March 6, 2003 awarding a compensation of Rs.3,81,460/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident occurred on May 13, 1998 at about 6.30 p.m.. While the claimant was riding a motor cycle bearing registration No.KL.01-G 5978 along Pirappancode – Nagarukuzhi road, he was knocked down by an Ambassador car bearing registration No. KL-5A 7576 driven by the 2nd respondent, as a result of which he sustained serious injuries. Alleging negligence against the 2nd respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.7 lakhs. MACA 850/2004 2 3. Respondents 1 and 2, the owner and driver of the offending car, remained absent and they were set ex parte by the Tribunal. The 3rd respondent, the insurer of the offending car, filed a written statement admitting the policy but attributed negligence to the claimant. 4. The claimant was examined as PW1 and Exts.A1 to A10(a) were marked on the side of the claimant. No evidence was adduced by the contesting 3rd respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 2nd respondent, the driver of the offending car and awarded a compensation of Rs.3,81,460/- with interest @ 9% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence MACA 850/2004 3 of the 2nd respondent, the driver of the offending car, 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. 7. The Tribunal awarded a total compensation of Rs.3,81,460/-. Break up of the compensation awarded is as under:- Repairing the scooter : Rs. 3,000 Loss of income for two years : Rs. 48,000 Bystander's expenses : Rs. 12,000 Transport to hospital : Rs. 5,000 Extra nourishment : Rs. 5,000 Damage to clothing : Rs. 500 Medicine : Rs. 27,000 Pain and suffering : Rs. 30,000 Permanent partial disability : Rs.1,50,960 Reduction in his amenities : Rs.1,00,000 and enjoyment in life and earning capacity, future medication and other matters. ------------------ Total : Rs.3,81,460 ======= 8. The claimant sustained the following injuries in the accident :- “1) Communited closed fracture of right femur with other soft tissue injuries. MACA 850/2004 4 2) Lacerated wounds 7 x 5 cm. on the lateral aspect of left thigh and 5 x 4 cm. on the knee with partially abutting pattellar tendon. 9. Ext.A9 certificate of disability shows that he has now the following disabilities:- 1) Non-union (L) femur shaft. 2) Persisting – resistant staphylococcus (Vancongain resistent) infection. 3) Shortening of 4 c.m. (L) femoral segment. 4) Ankylosis of (L) knee.” 10. The learned counsel for the appellant/claimant sought enhancement of compensation for the disability caused, loss of amenities and enjoyment in life and on other heads. 11. The Tribunal took the monthly income of the claimant as Rs.2,000/-, took his percentage of disability as 37% as certified by the doctor in Ext.A9, adopted a multiplier of 17, as he was aged 32 at the time of the accident and awarded a compensation of Rs.1,50,960/- for the disability caused. The claimant was a Milk Vendor earning Rs.4,000/- per month, according to the claimant. MACA 850/2004 5 Taking into consideration the above aspect, we feel that his monthly income can reasonably be fixed at Rs.3,000/-. Multiplier adopted by the Tribunal as 17 is not seriously challenged. The claimant has now the above mentioned disabilities. Further the Tribunal has noted that he is unable to stand or walk or to do his own activities. There was unhealing wound on the fracture site. Therefore, the percentage of disability certified by the doctor in Ext.A9 as 37% appears to be reasonable. Thus, calculated for the disability caused, the claimant is entitled to a compensation of Rs.2,26,440/- (Rs.3,000/- x 12 x 17 x 37%). Thus, the claimant is entitled to an additional compensation of Rs.75,480/- on this count. 12. The Tribunal awarded a compensation of Rs.1,00,000/- for loss of amenities and enjoyment in life, earning capacity and also for future treatment expenses. Taking into consideration the nature of the injuries sustained by the claimant and the fact that he need treatment in future, we feel that an additional compensation MACA 850/2004 6 of Rs.30,000/- would be reasonable 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. 13. In the result, the claimant is found entitled to an additional compensation of Rs.95,480/- He is entitled to interest @ 7.5% per annum from the date of petition till realization. The 3rd respondent, insurer of the offending bus, 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