High Court Kerala High Court

Arun vs R.Sivasankaran on 17 June, 2010

Kerala High Court
Arun vs R.Sivasankaran on 17 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 150 of 2004(D)


1. ARUN, S/O. VARGHESE NADAR,
                      ...  Petitioner

                        Vs



1. R.SIVASANKARAN, HOUSE NO. 17/364,
                       ...       Respondent

2. THE DIVISIONAL MANAGER,

                For Petitioner  :SRI.PIRAPPANCODE V.S.SUDHIR

                For Respondent  :SRI.MATHEWS JACOB (SR.)

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

 Dated :17/06/2010

 O R D E R
               A.K. BASHEER & P.Q. BARKATH ALI, JJ.
               -------------------------------------------------------
                       M.A.C.A NO. 150 OF 2004
                        -------------------------------------
             DATED THIS THE 17TH DAY OF JUNE, 2004

                                  JUDGMENT

Barkath Ali, J.

In this appeal under Section 173 of Motor Vehicles Act, the

claimant in OP(MV)No.351/01 on the file of Motor Accidents

Claims Tribunal, Neyyattinkara challenges the judgment and

award of the Tribunal dated August 12, 2003 awarding a

compensation of Rs. 80,840/- for the loss caused to the claimant

on account of the injuries sustained by him in a motor accident.

2. The facts leading to this appeal in brief are these:

On Februay 16, 2001 at about 4.05p.m., the claimant was

riding a motor cycle bearing registration No. KL-01-C-4428 from

Neyyattinkara to Amaravila. When he reached at Gramam an

autorikshaw bearing registration No. KL-01-T.7019 driven by

the 2nd respondent came at a high speed and dashed against

motor cycle of the claimant. The claimant sustained serious

injuries. According to the claimant, the accident occurred due to

the negligence on the part of the driver of the autorikshaw. The

first respondent as the owner, the 2nd respondent as the driver

and the 3rd respondent as the insurer of the offending

autorikshaw are jointly and severally liable to pay compensation

M.A.C.A NO. 150 OF 2004
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to the claimant. The claimant claimed a compensation of

Rs. 4,00,000/-.

3. The 1st respondent, the owner of the offending autorikshaw

remained absent and was set ex-parte by the Tribunal. The 2nd

respondent, the driver of the offending vehicle was removed

from the party array by the Tribunal on the request of the

claimant. The 3rd respondent, the insurer of the offending

autorikshaw filed a written statement admitting the policy, but

further contended that there was also negligence on the part of

the 2nd respondent.

4. The claimant was examined as PW1 and Exts. A1 to A8

series were marked on the side of the claimant. On the side of

contesting 3rd respondent Ext. B1 was marked. On an

appreciation of evidence, the Tribunal found that the accident

occurred due to the negligence on the part of the 2nd respondent,

the driver of the offending autorikshaw and awarded a

compensation of Rs. 80,840/- with interest @ 9% per annum from

the date of petition till realization and proportionate cost. 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

M.A.C.A NO. 150 OF 2004
3

counsel for the Insurance Company.

6. The claimant sustained the following injuries as revealed

from Ext.A3, the copy of the wound certificate and Ext.A4, the

copy of the OP ticket and Ext.P5 series of referral OP card.

(i)Abrasions on the (R) heel 3 x 1cm

(ii)Fracture both bones (R)lower leg.

(iii)Abrasion on the(R)shoulder

(iv)Abrasion on the(R)elbow

7. Ext.A6, certificate of disability issued by the Doctor,

Medical College Hospital, Thiruvananthapuram shows that the

claimant has a permanent disability of 16%.

8. The Tribunal awarded a total compensation of Rs.80,840/-.

The break up of the compensation awarded is as under:

     Pain and suffering         : Rs. 12,000

     Loss of earnings           : Rs. 6,000
     (@ Rs.2,000 per month
     for 3 months)

     Medical expenses           : Rs. 4,000
     Damage to clothing         : Rs.     500
     Transport to hospital      : Rs. 1,500
     Disability caused          : Rs. 51,840
     For the discomfort &       : Rs. 5,000
     inconvenience caused
                                      --------------
                      Total     : Rs. 80,840
                                      ======

9. The counsel for the claimant sought enhancement of the

M.A.C.A NO. 150 OF 2004
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compensation for the disability caused and for loss of amenities

and enjoyment of life.

10. The Tribunal took the monthly income of the claimant as

Rs. 2,000/- and took the percentage of disability as 12% and

adopted a multiplier of 18 and awarded a compensation of Rs.

51,840/- for the disability caused. According to the claimant, he

is an organ player in ganamela troops and used to earn Rs.

6,000/- per month. Taking into consideration of the above

aspect, we feel that the monthly income of the claimant can be

reasonably fixed at Rs. 3,000/-. The percentage of disability

assessed by the Tribunal as 12% and the multiplier adopted as

18 are not seriously challenged. Therefore, the claimant is

entitled to a compensation of Rs. 77,760/- for the disability

caused (Rs. 3000X12x18x12%). Thus on this count, the claimant

is entitled to an additional compensation of Rs. 25,920/-.

11. The Tribunal did not award any compensation for the loss

of amenities and enjoyment of life. Taking into consideration

the nature of injuries sustained and the period of treatment he

had undergone, we feel that a compensation of Rs. 10,000/-

would be reasonable on this count.

12. There is another aspect in this case. The Tribunal awarded

M.A.C.A NO. 150 OF 2004
5

loss of earnings for three months @ Rs. 2,000/- per month. Now

we have fixed monthly income of the claimant as Rs. 3,000/-.

Therefore, towards loss of earnings, claimant is entitled to Rs.

9,000/-. Thus, the claimant is entitled to an additional

compensation of Rs. 3,000/- on this count. As regards

compensation awarded under other heads, we find the same to

be reasonable and therefore, we are not disturbing the same.

Thus, the claimant is entitled to an additional compensation

of Rs. 38,920/-. He is entitled to interest at the rate of 9% per

annum from the date of petition till realization and proportionate

cost. The 3rd respondent, being the insurer of the offending

vehicle shall deposit the amount before the Tribunal within two

months from the date of receipt of 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)

pkk

M.A.C.A NO. 150 OF 2004
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