IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 MACA.No. 137 of 2004() ---------------------- OPMV.551/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- PAUL SAJI K.ANTONY, KOCHERIL HOUSE, WARD NO.11, CHANDIROOR P.O., AROOR PANCHAYATH. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.NITHYA.K. RESPONDENT(S): RESPONDENTS: --------------------------- 1. POULOSE, S/O. LONAPPAN, PULLUKARAN VEEDU, KORATTI VILLAGE. 2. V.K.SIVARAMAN, MAVELI ANTHIKAD HOUSE, MANJUMMEL P.O., ERNAKULAM DISTRICT. 3. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO. LTD., KODUVATH SHOPPING COMPLEX, SUB JAIL ROAD, ALUVA. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.137 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.551/1996 of Motor Accidents Claims Tribunal, Alappuzha challenges the judgment and award of the Tribunal dated January 29, 2003 awarding a compensation of Rs. 1,72,710/- 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 25 at the time of the accident and was employed as Analysit Gr.II in the Hindustan Insecticides Ltd. Udyogamandal earning a salary of Rs. 4069.23 per month. On September 16, 1995 at about 11.30 a.m., the claimant was riding his motor cycle bearing Reg.No.KL.7/E 4227 from south to north along Cheranallur-Edapally road. At that time, a mini lorry bearing Reg.No.KL-7/G 2349 came at a high speed from north to south and MACA.No.137/04 2 dashed against the motor cycle of the claimant. The claimant fell down and sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending mini lorry by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending mini lorry are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 4 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending mini lorry remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending mini lorry filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the claimant. 4. PW1 was examined and Exts.A1 to A6 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending mini lorry by first respondent and awarded a MACA.No.137/04 3 compensation of Rs.1,72,710/- with interest @ 9% per annum from the date of petition till realisation and a cost of Rs. 1,000/-. 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 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 first 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.A5, the copy of the wound certificate issued from Ernakulam Medical Centre hospital. 1. Two lacerated wounds on ( R) knee laceration on ( R) heel. 2. Communited fracture shaft of ( R) femur lower, 3rd, compound fracture ( R) patella IM nailing done on Anesthesia. 8. Ext.A6, the treatment certificate, shows that I.M. nailing of MACA.No.137/04 4 right femur and excision of loose patella fragments were done. Ext.A7 is the discharge summary. Ext.A8 is the Medical Certificate issued by Ortho Surgeon of Ernakulam Medical Centre hospital. 9. The Tribunal awarded a total compensation of Rs.1,72,710/-. The break up of the compensation awarded is as under : Loss of earning - Rs. 36,710/- Treatment charges - Rs. 92,000/- Pain and suffering - Rs.15,000/- Damage to clothing - Rs. 9,000/- Disability - Rs. 20,000/- 10. Counsel for the claimant sought enhancement of the compensation for the disability caused. The Tribunal awarded a compensation of Rs. 20,000/- for the disability caused. But Ext.A19, the certificate issued by the District Medical Officer, Ernakulam shows that he has a disability of 10%. Ext.A18 shows that at the time of the accident, claimant was employed as Analysit Gr.II in the Hindustan Insecticides Ltd. Udyogamandal drawing a salary of Rs. 4,869.23/- Therefore, his monthly income can be reasonably fixed at Rs. 4,000/-. The claimant was aged 25 at the time of the accident. Therefore, a multiplier of 10 would be reasonable in this case. Thus calculated for MACA.No.137/04 5 the disability caused, the claimant is entitled to a compensation of Rs. 48,000/- ( 10% x 4000 x 12 x10). Thus on this count, the claimant is entitled to an additional compensation of Rs. 28,000/-. 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 entitled to an additional compensation of Rs. 28,000/-. 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.137/04 6 MACA.No.137/04 7