IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 MACA.No. 829 of 2004() ---------------------- OPMV.401/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- SAJI KUMAR S/O. KRISHNAN NAIR, PALAM PURAYIDATHIL, UPPUTHODU, RAJAMUNDI, RAJAMUNDI. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): RESPONDENTS -------------------------- 1. T.M.ALI S/O. MYTHEEN MAKKAR, THENALIL HOUSE, PAZHAKAPILLY P.O., MUVATTUPUZHA. 2. SAIDU MUHAMMED, S/O. KUNJEENPILLAI, VADAKAN HOUSE, PALLIKAVALA, MUDICKAL P.O. 3. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, BAZAR ROAD, MATTANCHERRY, COCHIN-2. 4. BIBIN SKARIAH, ANCHANICKAL HOUSE, THOPPIPALA P.O., LABBAKKADA. 5. THE NEW INDIA ASSURANCE CO.LTD., CENTRAL JUNCTION, KATTAPPANA 685 508. ADV. DR.ELIZABETH VARKEY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.829 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010 JUDGMENT Barkath Ali, J. The appellant is the claimant in O.P.(MV)No.401/1999 on the file of Motor Accidents Claims Tribunal, Perumbavoor. He sustained the following injuries in a motor accident which occurred on October 27, 1998 at about 7.a.m.: Deep incised wound left side of the face extending to nose, incised wound lateral aspect of left eye, pain and swelling right forearm ( both bones), incised wound left parietal region, pain over right hip. 2. The jeep bearing Reg.No.KL-6-9094 in which he was travelling collided head on with a lorry bearing Reg.No.KL-3069 at Cherukunnam on Malabar-Upputhodu road. He filed the O.P. under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 2 lakhs alleging negligence against the second respondent, the driver of the lorry. 3. First respondent, the owner of the offending lorry remained absent and were set ex parte by the Tribunal. Respondents 2 and 3, the MACA.No.829/2004 2 driver and the insurer of the offending lorry filed separate written statements admitting the accident and the policy of the lorry. They contended that there was also negligence on the part of the driver of the jeep. Respondents 4 and 5 are the driver and insurer of the jeep. The fourth respondent the driver in his written statement admitted the accident, but contended that the accident occurred due to the negligence on the part of the second respondent. The fifth respondent,the insurer of the jeep admitted the policy. 4. The claimant was examined as PW1 and Exts.A1 to A9 series were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked. On an appreciation of evidence, the Tribunal awarded a total compensation of Rs. 42,214/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost against respondents 1 to 3. 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 Companies. MACA.No.829/2004 3 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 Tribunal awarded a total compensation of Rs.42,214/-. The break up of the compensation awarded by the Tribunal is as under : Pain and suffering - Rs. 12,000/- Damage to clothing - Rs. 300/- Transportation - Rs. 1,000/- Medical expenses - Rs. 2,350/- Bystander expenses - Rs. 1,500/- Loss of earning power - Rs. 11,664/- Loss of amenities in life - Rs. 5,000/- Disfiguration - Rs. 3,000/- Loss of earning - Rs. 5,400/- 8. Counsel for the claimant sought enhancement of compensation for the for the disability caused , for loss of amenities and enjoyment of life and also for medical expenses. 9. The Tribunal took the monthly income of the claimant as Rs.1,800/- and took the percentage of disability as 3% and adopted a MACA.No.829/2004 4 multiplier of 18 and awarded Rs. 11,664/- for the disability caused. According to the claimant, he was a toddy tapper earning Rs. 3,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2,500/-. The multiplier taken by the Tribunal as 18 is not seriously challenged. The certificate is disability Ext.A8 shows that he has a permanent disability of 9% due to post traumatic arthritis of the right wrist with numbness of right wrist and little finger. The claimant being a toddy tapper ,we feel that his percentage of disability can be fixed at 5%. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 27,000/- ( 5% x 2500 x 12 x 18). Thus on this count, the claimant is entitled to an additional compensation of Rs.15,336/-. 10. The Tribunal awarded Rs. 5,000/- for loss of amenities and enjoyment in life which appears to be very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. 11. There is another aspect in this case. The Tribunal awarded MACA.No.829/2004 5 Rs. 2350/- only for the treatment expenses covered by the bills Ext.A7 series. Counsel for the claimant submitted that he has produced bills worth Rs. 12098.45 which the Tribunal has failed to take into account. Taking into account the said bills, we feel that a compensation of Rs. 7500/- would be reasonable for the medical expenses. Therefore, on this count, the claimant is entitled to an additional compensation of Rs. 5,150/-. 12. The Tribunal awarded Rs. 5400/- for loss of earnings for three months @ Rs. 1800/- per month. As we have fixed the monthly income of the claimant as Rs. 2500/-, the claimant is entitled to a compensation of Rs. 7,500/- towards loss of earnings for three months. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the claimant is entitled to an additional compensation of Rs.27,586/-. 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 MACA.No.829/2004 6 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.829/2004 7