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 23RD MARCH 2010 / 2ND CHAITHRA 1932 MFA.No. 1123 of 2000() ------------------------------------ OPMV.1182/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ------------------------ K.O.JOSE, AGED 49, S/O. OUSEPH, KAVUNGAL HOUSE, PARIYARAM DESOM & VILLAGE, PARIYARAM P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS -------------------------- 1. M.K.THOMAS, S/O. KUNJUVARKEY, MANJOORAN HOUSE, PARIYARAM P.O., THRISSUR DISTRICT. 2. ANTOO, S/O. KOCHUVARKEY, MANJOORAN HOUSE, PARIYARM P.O. THRISSUR DISTRICT. 3. THE ORIENTAL INSURANCE CO. LTD., CHALAKUDY. ADV. SRI.M.JACOB MURICKAN FOR R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.F.A.No. 1123 of 2000 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 23rd 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.1182 of 1993 of Motor Accidents Claims Tribunal, Irinjalakuda challenges the judgment and award of the Tribunal dated June 20, 2000, awarding a compensation of Rs.45,000/- 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 42 at the time of the accident. He was doing fabrication work and was earning Rs.2,000/- per month, according to the claimant. On April 1, 1993 at about 10 a.m. while the claimant was travelling in an auto- rickshaw bearing registration No.KL-8B 3691, driven by the MFA 1123/2000 2 second respondent, it collided head on with another auto- rickshaw coming from opposite side near Jose Leather Works in Chalakudy, on the Thrissur -Ernakulam National Highway. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the auto-rickshaw in which he was travelling by the 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. 3. Though respondents 1 and 2, the owner and the driver of the offending auto-rickshaw, entered appearance, they did not file written statement before the Tribunal. The third respondent, the insurer of the offending auto- rickshaw, filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence of the driver of the other auto-rickshaw involved in the accident. MFA 1123/2000 3 4. Exts.A1 to A12 series were marked on the side of the claimant before the Tribunal. No evidence was adduced on the side of the respondents. 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 second respondent and awarded a compensation of Rs. 45,000/-. 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 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 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.A6 copy of wound certificate issued from MFA 1123/2000 4 the Medical Trust Hospital, Erbnakulam:- 1) Abrasions below right clavicle, near elbow, left leg below knee. 2) Lacerated wounds 11 x 1 x 1 cms. right parietal extending up to right ear. 3) Tearing the pinna which is partially detached. 4) Irregular lacerated wound over right maxilla. 5) Fractures to mandible ramus plus sub codylar (left). 6) Cerebral concussion. Ext.A7 series are discharge certificates issued from the Medical Trust Hospital, Ernakulam. Ext.A10 certificate issued by the Dental Surgeon. He has certified that the claimant has suffered permanent disability of 12%. Ext.A11 is the certificate issued by C. Rajan Pillai, a contractor, under whom the claimant was working. 8. The Tribunal awarded a compensation of Rs.45,000/-. Break up of the compensation awarded is as under : MFA 1123/2000 5 Loss of earning : Rs.5,000/- Medical expenses, : Rs.10,000/- transportation charges, extra-nourishment and expenses on attendants. Pain and sufferings : Rs.10,000/- Disabilities caused : Rs.12,000/- Loss of one tooth and : Rs.5,000/- fracture of two teeth. Loss of amenities and : Rs.3,000/- enjoyment of life. -------------------- Total : Rs.45,000/- ======== 9. The learned counsel for appellant sought enhancement of compensation towards the disability caused. The Tribunal fixed the monthly income of the claimant as Rs.1,250/- and adopted a multiplier of 15. Ext.A10 certificate of disability shows that the claimant has suffered permanent disability at 12%. The Tribunal took the disability at 10% and awarded a compensation of Rs.12,000/- for the disability caused. Taking into consideration the fact that the claimant was working as a Fabrication Worker, we feel that his monthly income can be reasonably fixed at Rs.1,500/-. The multiplier adopted by MFA 1123/2000 6 the Tribunal and the percentage of disability assessed by the Tribunal at 10% is not seriously challenged in this appeal. Thus, for the disability caused, the claimant is entitled to a compensation of Rs.27,000/-(1500 x 12 x 15 x 10%). Therefore, on this count the claimant is entitled to an additional compensation of Rs.15,000/-. 10. For the loss of amenities and enjoyment of life, the Tribunal awarded a compensation of Rs.3,000/-. The claimant has lost two teeth. Therefore, we feel that a compensation of Rs.7,500/- for the loss of amenities and enjoyment of life would be reasonable. 11. There is another aspect in the case. For the loss of earning the Tribunal awarded Rs.5,000/- i.e., four months at the rate of Rs.1,250/- p.m. We have fixed the monthly income of the petitioner as Rs.1,500/-. Therefore, on this count the claimant is entitled to compensation of Rs.6,000/-. Thus, the claimant is entitled to an additional compensation of Rs.1,000/- on this count. The compensation granted under other heads appears to be reasonable and therefore, MFA 1123/2000 7 we are not disturbing the same. 12. In the result, the claimant is found entitled to Rs.20,500/- as additional compensation. The Tribunal awarded interest at 12% p.a., which appears to be excessive. The claimant is entitled to interest @ 12% per annum from the date of petition till the date of appeal and from the date of appeal till realization he is entitled to interest @ 9% p.a. 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. mn. MFA 1123/2000 8 A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~ M.F.A.No. 1123 of 2000 =~=~=~=~=~=~=~=~=~=~=~=~=~=~ JUDGMENT 23 rd day of March, 2010