IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2411 of 2008()
1. ABDUL RAZAK, S/O,.KOYAKUTTY,
... Petitioner
Vs
1. M/S.PATEL ON ROAD COURIERS LTD.,
... Respondent
2. ABDUL KAREEM, S/O.ABOOBACKER,
3. THE ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.K.RAVEENDRAN
For Respondent :SRI.VPK.PANICKER
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :24/06/2010
O R D E R
A.K.BAHSEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No. 2411 of 2008
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Dated this the 24th day of June, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles
Act, the claimant in O.P. (MV) No.1447 of 1997 of Addl.
Motor Accidents Claims Tribunal, Mavelikara challenges
the judgment and award of the Tribunal dated May 22,
2007 awarding a compensation of Rs.1,00,000/- for the loss
caused to him on account of the injuries sustained by him in
a motor accident.
2. The facts leading to this appeal, in brief, are
these:- On January 8, 1997 at about 3 p.m. the petitioner
was riding his motor cycle bearing registration No. KL-
3/8598 along the National Highway 47. When he reached
near Kayamkulam, a mini van bearing registration No.KL-
01F/4710, driven by second respondent, came at a high
speed and dashed against the motor cycle of the claimant.
The claimant sustained serious injuries. According to the
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claimant, the accident occurred due to the rash and
negligent driving of the offending mini van by the second
respondent. First respondent as the owner, second
respondent as the driver and third respondent as the insurer
of the offending mini van are jointly and severally liable to
pay compensation to the claimant. The claimant claimed a
compensation of Rs.5,00,000/-.
3. First respondent, owner of the offending mini van,
filed a written statement, admitting the accident, but
contending that the accident occurred due to negligence of
the claimant. As the claimant failed to take steps to issue
notice to the second respondent, the Tribunal dismissed the
O.P. against the second respondent. The 3rd respondent, the
insurer of the offending mini van, filed a written statement,
admitting the policy.
4. PWs.1 and 2 were examined and Exts.A1 to A21
were marked on the side of the claimant before the Tribunal.
No evidence was adduced by the respondents before the
Tribunal. The Tribunal, on an appreciation of evidence, found
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that the accident occurred due to the rash and negligent
driving of the offending mini van by the second respondent
respondent and awarded a compensation of Rs.1,90,000/-
with interest @ 7.5 % per annum from the date of petition till
realization. The claimant has now come up in appeal
challenging the quantum of compensation awarded by the
Tribunal.
5. Heard the counsel for the claimant and the counsel
for 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, driver of the offending
mini van, 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.A5 copy of the wound certificate, issued
from Medical College Hospital, Alappuzha:-
1) Comminuted fracture right femur.
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2) Displaced fracture base of 5th metacarpal, left
hand.
3) Fracture bone of 5th metacarpal right.
4) Fracture base of 2nd and 3rd metatarsal right.
5) Deformity (R) femur, M/3rd L 3rd L 3rd junction.
6) Deformity oripitus (L) hand 5th metacarpal.
7) Swelling both knees.
8) Infected LW(L) leg infected (R) leg.
9) Lacerated wound 6 x 2 over left parietal
region.
10)Lacerated wound 6 x 3 skin deep on the left
leg exposing bone.
Ext.A12 certificate of disability showed that the claimant has
a permanent disability at 24%. He was laid up in the hospital
on different occasions for 117 days in Medical College
Hospital, Alappuzha, as evidenced by Ext.A6 series.
8. The Tribunal awarded a total compensation of
Rs.1,90,000/-. Break up of the amount awarded is as under :-
Transportation expense : Rs. 3,000/-
Medical expense : Rs. 76,960/-
Bystander's expense : Rs. 5,850/-
Extra-nourishment, etc. : Rs. 3,000/-
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Pain and sufferings : Rs. 30,000/-
Loss of amenities : Rs. 5,000/-
Loss of earning power : Rs. 54,000/-
Loss of earning : Rs. 12,000/-
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Total : Rs.1,89,810
Rounded to : Rs.1,90,000/-
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9. The learned counsel for appellant sought
enhancement of compensation for the disability caused and
for the loss of amenities and enjoyment in life.
10. The Tribunal took the monthly income of the
claimant as Rs.2,000/-, adopted a multiplier of 15, took the
percentage of disability as 15 and awarded Rs.54,000/- for
the disability caused. The claimant as PW1 deposed that he
was doing copra business. Having regard to the said fact, we
feel that his monthly income can reasonably be estimated at
Rs.2,500/-. The multiplier of 15 taken by the Tribunal appears
reasonable. A copy of Ext.A12 is made available by learned
counsel for the claimant for our perusal, which would show
the claimant has now the following disabilities:-
1) Left ulnar neuropathy and unable to do fine
works with his left hand.
MACA 2411/08 6
2) Unstable Rt Knee due to intra-articular
fractures and collateral and cruciate ligament
injury.
3) 2.5 inch shortening of Rt Lower limb at thigh
level.
4) Terminal 30 degree flexion deformity of Rt
knee.
5) Flexion deformity of Rt thigh 10 degree.
In view of the above said disability suffered by the claimant,
we feel that percentage of disability of the claimant can
reasonably be fixed at 20%. Thus calculated for the disability
caused, the claimant is entitled to a compensation of
Rs.90,000/- (Rs.2,500/- x 12 x 15 x 20/100). Thus, on this
count, the claimant is entitled to an additional compensation
of Rs.36,000/-.
11. The Tribunal awarded Rs.5,000/- towards the loss of
amenities and enjoyment in life, which appears to be very
low. Taking into consideration the nature of the injuries
sustained by the claimant, we feel that a compensation of
Rs.20,000/- would be reasonable for the loss of amenities and
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enjoyment in life. Thus, the claimant is entitled to an
additional compensation of Rs.15,000/- on this count. As
regards the compensation granted under other heads, we
find the same to be reasonable and therefore, we are not
disturbing the same.
12. In the result, the claimant is found entitled to an
additional compensation of Rs.51,000/-. He is entitled to
interest @ 7.5% per annum from the date of petition till
realization and proportionate cost. The third respondent
being the insurer of the offending mini van, shall deposit the
amount before the Tribunal 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.