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 11TH MARCH 2010 / 20TH PHALGUNA 1931 MACA.No. 1559 of 2005() ----------------------- OPMV.274/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: ----------------------------------- BINESH, S/O. SKARIA, ANCHANICAL (H) THOPPIPALA P.O., LABHAKKADA, KATTAPPANA, IDUKKI DISTRICT. BY ADV. SRI.T.SAJI RESPONDENT(S): RESPONDENTS --------------- 1. JOSEPH VARGHESE @ MONICHAN, ILLAMCHINGATHU (H), KOTHAPARA, UPPUTHARA P.O., IDUKKI DISTRICT. 2. A.S. MUHAMMED IBRAHIM, S/O. SYED MUHAMMAD, ILAHIA MANZIL, PARATHODU P.O., KANJIRAPILLY. 3. UNITED INDIA INSURANCE CO.LTD., KOCHI BRANCH OFFICE, KOCHI-16. 4. BABY SKARIA, ANCHANICAL THOPPIPALA P.O., IDUKKI DISTRICT. 5. NEW INDIA INSURANCE CO.LTD., KATTAPPANA. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R5 SRI.C.V.BIMAL ROY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1559 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.274/2001 of Motor Accidents Claims Tribunal, Thodupuzha challenges the judgment and award of the Tribunal dated September 22, 2004 awarding a compensation of Rs. 3,44,100/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was a student aged 22 at the time of the accident and was doing agricultural work and earning Rs. 3,000/- per month, according to him. On August 29, 2000 at about 2.30 p.m. while he was pillion riding on a motor cycle bearing Reg.No.KL 6A 2965 and reached at Labhakkada junction near Kattappana, a jeep bearing Reg.No.KL 7Q 4523 came at a high speed and dashed against the motor cycle of the claimant. The claimant sustained serious injuries. MACA.No.1559/2005 2 His right leg was amputated below knee. According to the claimant, accident occurred due to the rash and negligent driving of the offending jeep by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. Fourth respondent is the owner of the bike and fifth respondent is the insurer of the same. Claimant claimed a compensation of Rs. 9 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending jeep and fourth respondent, the owner of the bike remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending jeep filed a written statement admitting the policy, but contending that there was also negligence on the part of the claimant in riding his motor cycle. The fifth respondent, the insurer of the motor cycle filed a written statement admitting the accident and further contending that the accident occurred due to the negligence on the part of the first respondent. 4. Exts.A1 to A9 were marked on the side of the claimant MACA.No.1559/2005 3 before the Tribunal. Exts.B1 to B3 were marked on the side of contesting respondents 3 and 5. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by first respondent and awarded a compensation of Rs. 3,44,100/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant 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 Tribunal awarded a total compensation of Rs. 3,44,100/-. The break up of the award amount is as under : Damage to clothing - Rs. 250/- Bystander's expenses -Rs. 1,800/- Extra nourishment -Rs. 1,000/- Transport expenses -Rs. 1,723/- Treatment expenses -Rs. 1,82,330/- Pain and suffering -Rs. 25,000/- MACA.No.1559/2005 4 Disability -Rs. 1,02,000/- Disfigurement and marriage prospects - Rs. 30,000/- ----------------- Total -Rs.3, 44,103/- Rounded off to -Rs. 3,44, 100/- ========== 8. Counsel for the appellant/claimant sought enhancement of compensation for the disability caused to the claimant as well as for the pain and suffering endured by the claimant. Ext.A6 is the copy of the wound certificate issued from the hospital. Ext.A7 is the discharge certificate and Ext.A9 is the copy of the disability certificate issued from the hospital. The claimant sustained the following injuries : 1) Lacerated wound over lateral aspect lower ½ of right leg with broken bones exposed outside and over infrapatellar area. 2) Small toe of right leg amputated. 3) Compound type III C communited segmental fracture both bones of right leg with doubtful vascularity. 4) Soft tissue trauma. 5) Amputation of right leg 10cm.distal to right knee joint was done. 9. Ext.A9, the certificate of disability issued by the Medical Board, Idukki shows that claimant has a disability of 40% which is MACA.No.1559/2005 5 accepted by the Tribunal. The claimant was aged 22 at the time of the accident and a multiplier of 17 was adopted by the Tribunal. For the disability caused, Rs. 102,100/- was awarded by the Tribunal. 10. The counsel for the claimant would submit that the monthly income of the claimant should have been taken atleast Rs.3,000/- per month as he was also doing agricultural work. There is force in the above contention. Taking into consideration the fact that the claimant was also doing agricultural work, we feel that his monthly income can be reasonably estimated at Rs. 2,000/-. Thus his annual income works out to Rs. 24,000/-. The Tribunal took a multiplier of 17 which is not seriously challenged. Thus for the disability caused, the claimant is entitled to a compensation of Rs. 1,63,200/- ( 40% x 24000 x 17). Thus on this count, the claimant is entitled to an additional compensation of Rs. 61,200/-. 11. There is another aspect in this case. For the pain and suffering endured by the claimant, Rs. 25,000/- was awarded by the Tribunal which appears to be very low. Taking into consideration the fact that the right leg of the claimant was amputated, we feel that a MACA.No.1559/2005 6 compensation of Rs. 30,000/- would be reasonable on this count. Thus, on this count, the claimant is entitled to an additional compensation of Rs. 5,000/-. Regarding the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 12. In the result, the claimant is found entitled to an additional compensation of Rs. 66,200/-. He is entitled to interest @ 7.5% 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.1559/2005 7