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 27TH MAY 2010 / 6TH JYAISHTA 1932 MACA.No. 873 of 2004() ---------------------- OPMV.1261/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ---------------------------------- JOSEPH JOHN @ SAJI, KOLLAMPARAMPIL HOUSE, MALLOOSSERY P.O., KOTTAYAM. BY ADV. SMT.MINI ELIZABETH GEORGE SMT.BETTY K.ALUKKA RESPONDENT(S): RESPONDENTS -------------------------- 1. M.V.KUNJUPANICKAN, MUNDUCHIRA, KUMARAKOM. 2. APPUKUTTAN, S/O.KUTTAPPAN, CHINGASSERY, CHETTIKKUNNU KARA, VIA NATTAKOM. 3. NATIONAL INSURANCE CO.LTD., KOTTAYAM DIVISION, REPRESENTED BY ITS DIVISIONAL MANAGER. ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.873 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1261/1998 of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated July 9, 2003 awarding a compensation of Rs. 29,300/- 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 is a labourer aged 21 at the time of accident earning Rs. 3,000/- per month, according to him. On August 19, 1997 at about 9.30 a.m., while he was walking along Sasthri Road, Kottayam, he was knocked down by a goods autorickshaw bearing Reg.No.KL 4A 3447 driven by the second respondent. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending good autorickshaw by second MACA.No.873/2004 2 respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending autorickshaw are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, the owner and driver of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending autorickshaw filed a written statement admitting the policy, but contending that the accident occurred due to the negligence of the claimant. 4. This O.P. was jointly tried along with O.P.(MV) No.1500/98 and O.P.(MV)No.2054/1999 which were the claims made by the other injured persons in the accident and a common award was passed. Pws 1 and 2 were examined and Exts.A1 to A15 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 autorickshaw by second respondent and awarded a compensation of Rs. 29,300/- with interest MACA.No.873/2004 3 @ 9% per annum from the date of petition till realisation. The claimant has 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 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.A3, the copy of the wound certificate issued from the hospital. 1. Lacerated wound on the forehead. 2. Abrasion on the left ankle and contusion on the foot. 3. Fracture of both bones of the left leg. 8. The claimant was in hospital for 47 days. Ext.A7 series are bills . Ext.A5, the certificate of disability issued by the doctor shows that the petitioner has 12% disability. MACA.No.873/2004 4 9. The Tribunal awarded a total compensation of Rs.29,300/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 4,500/- Treatment expenses - Rs. 3,000/- Transportation expenses - Rs. 1,000/- Pain and suffering - Rs. 10,000/- Disability - Rs. 10,800/- 10. 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. 11. The Tribunal took the monthly income of the claimant as Rs. 1,500/- and took the disability as 4% and awarded a compensation of Rs. 10,800/- for the disability caused. Taking into consideration the fact that the claimant is a labourer aged 21, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. The Tribunal assessed the percentage of disability as 4%. But taking into consideration the nature of injury sustained and as in Ext.A9, the doctor has certified that the claimant has suffered a permanent disability of 12%, we feel that MACA.No.873/2004 5 the percentage of disability caused to the claimant can be assessed at 8%. As the claimant was aged only 21, the multiplier that can be adopted in this case is 17. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 32,640/- ( 8% x 2000 x 12 x 17). Thus, on this count, the claimant is entitled to an additional compensation of Rs. 21,840/-. 12. For the pain and suffering endured by the claimant, a compensation of Rs. 10,000/- was awarded by the Tribunal which appears to be very low. Having regard to the nature of the injury sustained, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 13. For loss of amenities and enjoyment of life, no compensation was awarded by the Tribunal. Having regard to the nature of the injury sustained, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. 14. For loss of earnings, Rs. 4500/- was awarded by the Tribunal i.e. for 3 months @ Rs. 1500/- per month. We have fixed the monthly income of the claimant as Rs. 2000/-. Therefore, towards loss MACA.No.873/2004 6 of earnings, he is entitled to a compensation of Rs. 6,000/-. Thus, on this count, he is entitled to an additional compensation of Rs. 1,500/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. In the result, the claimant is entitled to an additional compensation of Rs. 43,340/-. 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.873/2004 7 MACA.No.873/2004 8