High Court Kerala High Court

K.R.Jacob vs K.P.Prasannan @ … on 20 May, 2010

Kerala High Court
K.R.Jacob vs K.P.Prasannan @ … on 20 May, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 355 of 2004()


1. K.R.JACOB, S/O.KARAYAMPARAMBIL RAPPAI,
                      ...  Petitioner

                        Vs



1. K.P.PRASANNAN @ K.P.PARAMESWARAN,
                       ...       Respondent

2. P.M.HAZNAR, S/O. MOIDEEN,

3. NATIONAL INSURANCE CO., NORTH PARUR.

                For Petitioner  :SRI.P.V.BABY

                For Respondent  :SMT.SARAH SALVY

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :20/05/2010

 O R D E R
         A.K.BASHEER & P.Q. BARKATH ALI, JJ.
         ===========================
                 M.A.C.A. No. 355 of 2004
                =================
           Dated this the 20th day of May 2010


                     J U D G M E N T

Barkath Ali, J:

In this appeal under section 173 of the Motor

Vehicles Act claimant in O.P.(MV) No. 515 of 1995 on the

file of Motor Accidents Claims Tribunal, Irinjalakuda

challenges the judgment and award of the Tribunal dated

June 27, 2003, awarding a compensation of Rs.1,36,768/-

for the loss caused to the claimants, on account of the injury

sustained by him in a motor accident.

2. The facts leading to this appeal, in brief, are

these:- On August 11, 1994 at about 10.30 p.m. the

claimant was pillion riding on a scooter bearing

Registration No.KBR 3215 along Kattoor road. When he

reached at convent junction Edathiruthi a car bearing

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Registration No.KLH 068 driven by the 2nd respondent

came at a high speed and dashed against the scooter of

the claimant. The claimant sustained serious injuries.

According to the claimant the accident occurred due to the

rash and negligent driving of the offending car by the 2nd

respondent. 1st respondent as the owner, 2nd respondent

driver and the 3rd respondent, the insurer of the offending

car are jointly and severally liable to pay compensation to

the claimant.

3. The respondents 1 and 2, the owner and the

driver of the offending car remained absent and were set

ex parte. The 3rd respondent, the Insurer of the offending

car filed a written statement admitting the policy and

further contending that there was also negligence on the

part of the rider of the scooter.

4. Pws.1 & 2 and Exts.A1 to A15 were marked on the

side of the claimant. No evidence was adduced by the

contesting 3rd respondent.

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5. The accident is not disputed. The finding of the

Tribunal that the accident occurred due to the negligence

on the part of the 2nd 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.

6. The claimant has sustained the following injuries

as revealed from Ext.A6, copy of the wound certificate

issued from the West Fort Hospital, Thrissur and Ext.A7,

the discharge summary issued from that hospital :-

1. Crush injury right foot, extensive lacerated wound

dorsum of right foot.

2. Compound fracture right tibia.

3. Fracture 2nd, 3rd, 4th and 5th meta tarsal right foot.

4. Extensor tendon injuries.

He was in the hospital till September 21, 1994. He was

managed by Dynamic Axial external fixation with bone

grafting. ‘K’ wire was fixed for the fracture of metatarsals.

He had to undergo daily dressing and physiotherapy due to

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the stiffness to the joints for a period of ten months.

Ext.A13 is the certificate to that effect issued from the

hospital. Ext.A13, the certificate of disability issued by PW2

shows that the claimant has now a disability of 25%.

7. The Tribunal awarded a total compensation of

Rs.1,36,768/-. Break up of the compensation awarded is as

under:-

      Loss of earnings                   :     Rs.65,088/-
      (1 year @ Rs.5,489/- per month)
      Medical expenses                   :     Rs.35,400/-
      Transportation expenses            :     Rs.2,000/-
      Bystander expenses                 :     Rs.2,000/-
      For the disability caused and
      loss of earnings                   :     Rs.17,280/-
      Pain and suffering                 :     Rs.10,000/-
      For loss of amenities and
      enjoyment of life                  :     Rs.5,000/-
                                               -------------------
          Total                          :     Rs.1,36,768/-
                                               ========

8. The learned counsel for the Claimant sought

enhancement of the compensation for the disability caused,

for pain and suffering, for loss of amenities and for loss of

earnings. Ext.A15 produced by the claimant shows that he

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was employed as Sub Engineer in the Kerala State

Electricity Board and was drawing a salary of Rs.5,489/- per

month. He was aged 47 at the time of the accident. The

Tribunal awarded loss of earnings for one year ie;

Rs.65,088/-, but actually the claimant produced documents

to show that he was on leave for 26 months and 7days due

to the injury sustained. Therefore, for loss of earnings, the

claimant is entitled to Rs.76,846/- being the salary for 26

months @ Rs.5,489/- per month.

9. For pain and suffering due to injury, the Tribunal

awarded a compensation of Rs.10,000/-, which appears to

be quite inadequate. Taking into consideration the nature

of injury sustained, we feel that Rs.20,000/- would be

reasonable on this count.

10. For loss of amenities, Rs.5,000/- was awarded by

the Tribunal, which appears to be very low. Having regard

to the nature of injury sustained by the claimant, we feel

that Rs.10,000/- would be reasonable on this count.

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11. For the disability caused and for the

consequential loss of earning power Rs.17,280/- was

awarded by the Tribunal as compensation. The Tribunal

took the monthly income of the claimant as Rs.1,200/-

adopted a multiplier of 8 and took the percentage of

disability as 25%. PW2, the doctor who issued Ext.A13, the

certificate of disability has testified that claimant has loss of

soft tissue for the medial compartments of right leg, meta

tarsal fractures have mal united with persistant subluxation

and osteo arthritis and loss of muscles and that there is

shortening of right leg by 2c.m and right foot by 1c.m. The

grafted area of the right leg had decreased sensation. The

patient was limping. PW2 had further testified before the

Tribunal that the claimant has difficulty to stand for long

time, to run, to jump, carry heavy weight, to walk for long

distance and to drive vehicles. We are of the view that, the

percentage of disability caused to the claimant can be

reasonably estimated and assessed at 20%.

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12. The monthly income of the claimant was taken by

the Tribunal as Rs.5,489/-. But for assessing the

compensation of the disability caused, the Tribunal took the

monthly income of the claimant as Rs.1,200/- and took the

disability as 15%. In the light of the salary certificate

Ext.A15, we feel that the monthly income for the purpose of

assessing the compensation for the disability caused can be

reasonably fixed at Rs.3,000/-. The multiplier adopted as 8

by the Tribunal is not seriously challenged. Thus, for the

disability caused the claimant is entitled to a compensation

of Rs.57,600/-. Thus on this count, the claimant is entitled

to an additional compensation of Rs.40,320/-. As regards

the compensation awarded under other heads, we find the

same to be reasonable and therefore, we are not disturbing

the same.

13. Thus, the claimant is entitled to an additional

compensation of Rs.67,078/-. He is entitled to interest @

9% per annum from the date of petition till realisation and

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proportionate cost. The 3rd respondent being the Insurer of

the offending car shall deposit the amount before the

Tribunal within two months from the date of receipt of a

copy of this judgment. The impugned award is modified to

the above extent.

The appeal is disposed of as found above.

A.K.BASHEER,
JUDGE.

P.Q. BARKATH
ALI, JUDGE.

jvt