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 27TH JULY 2010 / 5TH SRAVANA 1932 MACA.No. 732 of 2004 (D) ---------------------- ( OPMV.1404/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM) .................... APPELLANT/PETITIONER. ----------------------------------- GORBY THOMAS, S/O.K.T.THOMAS, KUNNUMPURATHU HOUSE, MADAPPALLY, CHANGANACHERRY, REP. BY HIS FATHER AS NEXT FRIEND AND GUARDIAN K.T.THOMAS OF THE ABOVE ADDRESS. BY ADV. SRI.V.K.SUNIL RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C. THIRUVANANTHAPURAM. 2. K.RAMESHAN, S/O.GOPALAN, THADATHIL HOUSE PARRAYOM, MUZHATHALA P.O. 3. CHERIAN P.GEORGE, PULLATHILHOUSE,THELLAKOM. 4. THE NEW INDIA ASSURANCE COMPANY LTD., KOTTAYAM. 5. JOHN MATHEW, ARAKKALAYIL, ATHIRAMPUZHA P.O. KOTTAYAM. R1 BY ADV. SRI.JAMES KOSHY.N., SC. KSRTC R4 BY ADV. SRI.N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 732 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 27th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1404 of 1997 on the file of the Motor Accidents Claims Tribunal, Kottayam. He sustained an open fracture to the right ankle with loss of bones in a motor accident which occurred on February 16, 1997 at about 4.45 p.m. at Thiruvalla. Claimant was a boy aged 5 at the time of the accident. While he was pillion riding on the scooter, driven by his father, it dashed against a K.S.R.T.C. bus, driven by second respondent. Through his next friend father he filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.5 lakhs and alleging negligence against the second respondent, driver of the K.S.R.T.C. bus. 2. Respondents 1 and 2, the owner and driver of the offending bus, denied liability and attributed negligence to the fifth respondent, rider of the scooter. Before hitting the MACA 732/2004 2 scooter, the bus hit another bus bearing registration No.KL5E 55. Respondents 3 and 4 are the owner and insurer of the said bus. The fourth respondent admitted the policy of the bus but attributed negligence to the second respondent. The fifth respondent rider of the scooter remained absent. 3. Exts. A1 to A18 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of second respondent and awarded a compensation of Rs.1,45,915 with interest at the rate of 9% p.a. from the date of petition till realization and cost of Rs.2,000/-. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 4. Heard the learned counsel for the appellant and learned counsel for the K.S.R.T.C. and the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence MACA 732/2004 3 on the part of the second respondent, driver of the offending KSRTC bus 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.1,45,915/-. Break up of the compensation awarded is as under:- Treatment expenses : Rs. 93,315/- Extra nourishment : Rs. 2,000/- Pain and suffering : Rs. 20,000/- Disability caused : Rs. 30,600/- and enjoyment of life. ------------------ Total : Rs.1,45,915/- ======= 7. The learned counsel for the claimant sought enhancement of compensation awarded for the disability caused. 8. The Tribunal awarded a total compensation of Rs.30,600/- for the disability caused taking the percentage of disability as 10%. Taking into account the nature of the disability suffered by the claimant as revealed from Ext.A9, MACA 732/2004 4 we feel that the percentage of disability can be assessed at 15%. Therefore, for the disability caused, the claimant will be entitled to an additional compensation of Rs.15,300/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 9. In the result, the claimant is entitled to an additional compensation of Rs.15,300/-. He is entitled to interest @ 9% from the date of petition till realization. The first respondent being the owner of the offending bus shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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