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 14TH OCTOBER 2010 / 22ND ASWINA 1932 MACA.No. 1911 of 2007() ----------------------- OPMV.859/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- BABY MARKOSE, S/O. CHACKO MARKOSE, MATHA AMRUTHANANDA MAI MATHA ASHRAM LANE, KALOOR, ERNAKULAM. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): RESPONDENTS -------------------------- 1. P.M.RAJAPPAN, S/O. MADHAVAN, PADIYATH HOUSE, KADAKKARAPALLY P.O., CHERTHALA. 2. UNITED INDIA INSURANCE COMPANY LTD., ALAPPUZHA. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1911 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.859/2000 on the file of Motor Accidents Claims Tribunal, Alappuzha. He sustained the following injuries in a motor accident that occurred on November 6, 1999 at about 9 p.m. : Fracture humerus right, fracture elecranon right, fracture radius right and fracture ulna right. 2. The accident happened while the claimant was driving the car along Cherthala-Arthunkal road and when he reached near Madakal junction, it collided head on with the tempo van bearing Reg.No.KRA- 5971 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 11,00,000/-. 3. First respondent, the driver-cum-owner of the offending tempo van remained absent before the Tribunal. The second MACA.No.1911/2007 2 respondent, the insurer of the offending tempo van filed a written statement admitting the policy, but contended that the accident occurred due to the negligence of the claimant.. 4. PW1 was examined and Exts.A1 to A28 and Ext.C1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending tempo van by first respondent and awarded a compensation of Rs. 2,57,500/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. 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 MACA.No.1911/2007 3 entitled to any enhanced compensation. 7. The break up of the compensation awarded is as under : Loss of earnings - Rs. 16,000/- Medicine and treatment exp. - Rs.1,50,700/- Bystander exp. - Rs. 4,000/- Transportation charges - Rs. 2,500/- Extra nourishment - Rs. 2,000/- Damage to clothing - Rs. 500/- Pain and suffering - Rs. 20,000/- Loss of amenities - Rs. 10,000/- Future treatment exp. - Rs. 5,000/- Disability - Rs. 46,800/- 8. Counsel for the claimant sought enhancement of compensation for the disability caused, for pain and suffering endured and for loss of amenities and enjoyment of life. 9. The Tribunal took the monthly income of the claimant as Rs.2,000/- and took the percentage of disability as 15% and adopted a multiplier of 13 and awarded Rs. 46,800/- for the disability caused. According to the claimant, he was working as a Audio Engineer at Matha Amruthanantha Mai Hospital, Ernakulam earning Rs. 5,000/- per month as salary. Ext.A12 is his salary certificate. Taking into consideration the the above aspect, we feel that the monthly income of MACA.No.1911/2007 4 the claimant can be reasonably fixed at Rs. 3,000/-. In Ext.C1, the report of the Medical Board, it is stated that he has a disability of 20%. Taking into consideration the fact that movement of his right hand is restricted, we feel that the percentage of disability as shown in Ext.C1 can be taken as correct. The multiplier of 13 adopted by the Tribunal is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 93,600/- ( 20% x 3000 x 12 x 13). Thus on this count, the claimant is entitled to an additional compensation of Rs.46,800/-. 10. The Tribunal awarded Rs.20,000/- for the pain and suffering endured by the claimant. Taking into consideration the nature of the injury sustained by him and the fact that he was hospitalised for 75 days, we feel that a compensation of Rs. 40,000/- would be reasonable on this count. 11. The Tribunal awarded Rs. 10,000/- for loss of amenities and enjoyment in life which appears to be very low. Having regard to the nature of the injuries sustained, we feel that a compensation of Rs. 30,000/- would be reasonable on this count. MACA.No.1911/2007 5 12. Rs. 5,000/- was awarded by the Tribunal for future treatment expenses which appears to be very low. In Ext.C1, it is stated that because of the implant failure, there is hyper mobility at the non-union site, it can be improved by future surgical procedure. Ext.A27 certificate issued by Dr.V.K.Bhaskaran of Amritha Hospital, Cochin shows that claimant requires Illizarov ring fixation with bone transportation which may cost about Rs. 50,000/-. Taking into consideration the above aspect, we feel that a compensation of Rs. 20,000/- would be reasonable for future treatment expenses. 13. There is another aspect in this case. The Tribunal awarded Rs. 16,000/- towards loss of income for 8 months @ Rs. 2,000/- per month. As we have fixed the monthly income of the claimant as Rs. 3,000/-, he is entitled to a compensation of Rs. 24,000/- towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs. 8,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 14. The Tribunal awarded interest only @ 6% per annum which MACA.No.1911/2007 6 appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 15. In the result, the claimant is entitled to an additional compensation of Rs. 1,09,800/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation and proportionate cost. The second 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.1911/2007 7 MACA.No.1911/2007 8