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 10TH AUGUST 2010 / 19TH SRAVANA 1932 MACA.No. 1093 of 2010() ----------------------- OPMV.565/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONERS ------------------------- VINESH P.MOHAN, S/O.MOHANAN, POTTAYAIL HOUSE, ERAVAIMANGALAM P.O., THRISSUR DISTRICT. BY ADV. SRI.T.C.SURESH MENON RESPONDENT(S): RESPONDENTS -------------------------- 1. T.K.UNNIKRISHNAN, S/O.BALAKRISHNAN, THEKKOOTT VALAPPIL HOUSE, PERAMANGALAM P.O., THRISSUR. 2. ANEESH, S/O.CHANDRAN, POZHAMKUNNATH HOUSE, VADAKKUMMURY, PERAMANGALAM P.O., THRISSUR. 3. THE ORIENTAL ASSURANCE CO. LTD., P.B.NO.8, JYOTHI SUPER BAZAR, THODUPUZHA. ADV. SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------- M.A.C.A NO. 1093 OF 2010 --------------------------- DATED THIS THE 10TH DAY OF AUGUST, 2010 J U D G M E N T _ _ _ _ _ _ _ _ Barkath Ali, J. The appellant is the claimant in Op(MV) No. 565/2004 on the file of Motor Accidents Claims Tribunal, Thrissur. He sustained fracture both bones of left leg (type II compound fracture) in a motor accident that occurred on January 29, 2004 at Mundoor on the Thrissur-Kunnamkulam road. 2. The accident happened while the claimant was pillion riding on a scooter bearing registration No. KL-8/E 6461 along Thrissur- Kunnamkulam road. When it reached at Mundoor, he was knocked down by an autorickshaw bearing registration No. KL-08/T 4021 driven by the 2nd respondent. Alleging negligence on the part of 2nd respondent, the claimant filed OP under Section 166 of the Motor Vehicles Act before the M.A.C.T, Thrissur claiming a compensation of Rs. 1,90,000/-. M.A.C.A NO. 1093 OF 2010 2 3. Respondents 1 and 2, the owner and driver of the offending autorickshaw remained absent before the Tribunal and were set ex-parte by the Tribunal. The 3rd respondent, insurer of the offending autorickshaw filed a written statement admitting the policy and further contended that there was also negligence on the part of the rider of the scooter. Exts. A1 to A8 series were marked on the side of claimant. Exts. B1 to B4 were marked on the side of contesting 3rd respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to rash and negligent driving of the 2nd respondent, the driver of the autorickshaw and awarded a compensation of Rs. 88,000/- with interest at the rate of 8% per annum from the date of petition till realization. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard the counsel for the appellant and the counsel for the 3rd respondent, Insurance Company. M.A.C.A NO. 1093 OF 2010 3 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of 2nd respondent, the driver of the autorickshaw is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ? 6. The Tribunal awarded a total compensation of Rs. 88,000/-. The break up of the compensation awarded is as under: For loss of earnings :Rs. 7,500 For Transportation :Rs. 1,000 For extra nourishment :Rs. 1,500 For damage to clothings :Rs. 500 For treatment :Rs.39,968 For by-stander :Rs. 2,000 For pain and suffering :Rs.15,000 For disability caused :Rs.20,400 ----------- Rounded of to :Rs.88,000 ====== 7. The counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment in life. 8. The Tribunal took the monthly income of the claimant as Rs. 2,500/- per month and took M.A.C.A NO. 1093 OF 2010 4 the percentage of disability as 4% and adopted a multiplier 17 and awarded a compensation of Rs. 20,400/- for the disability caused. The claimant was employed as a sales man earning to Rs. 5,000/- per month according to him. As there are no documents to prove the income of the claimant, the Tribunal is perfectly justified in taking his monthly income as Rs.2,500/- per month. Multiplier 17 adopted by the Tribunal appears reasonable. As regards the percentage of disability, the Doctor has certified in Ext.A7 certificate that the claimant has a disability of 10%. The copy of Ext.A7 certificate was produced by the counsel for the claimant for our perusal. It shows that the claimant has the following disabilities; a) Partial ankylosis (L) knee with limitation of terminal 10o flexion of knee with difficulty in squatting with tenderness over tibial tuberosity -3%. b) Anterio medial instability of left knee with laxity of cruciates – 4%. c) Malunited fracture fibula in 100 angulation with tenderness over fracture site and bony thickening of tibia – 3%. d) Painful limitation of ankle M.A.C.A NO. 1093 OF 2010 5 dorsiflexion left. Dorsiflexion limited beyond 100 with pain on further dorsiflexion – 2%. 9. Taking into account the above aspect, we feel that the percentage of disability can be reasonably fixed at 6%. Thus, calculated for the disability caused, the claimant is entitled to a compensation of Rs. 30,600/- (Rs. 2500X12x6%x17). Thus, on this count, the claimant is entitled to an additional compensation of Rs.10,200/-. 10. No compensation was seen awarded for the loss of amenities and enjoyment of life. Taking into consideration of nature of injuries sustained, we feel that a compensation of Rs.15,000/- would be reasonable. As regards, the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. Thus, the claimant is entitled to an additional compensation of Rs. 25,200/-. He is entitled to interest at the rate of 8% per annum from the date of petition till realization and M.A.C.A NO. 1093 OF 2010 6 proportionate cost. The 3rd respondent, being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of copy of this judgment. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. Sd/- A.K.BASHEER (JUDGE) Sd/- P.Q.BARKATH ALI (JUDGE) PKK