IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1188 of 2004()
1. P.K.MUHAMMED UMMER,S/O.MUHAMMED
... Petitioner
Vs
1. D.DORESAMY,AGED 36 YEARS,
... Respondent
2. V.S.PALANI,AGED 45 YEARS,
3. M/S. UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SRI.JACOB ABRAHAM
For Respondent :SRI.AGINOV MATHAPPAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :09/04/2010
O R D E R
A.K.BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. No. 1188 of 2004
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Dated this the 9th day of April, 2010
JUDGMENT
Barkath Ali, J:
In this appeal under section 173 of the Motor
Vehicles Act claimant in O.P.(MV) No.2643 of 1995 of the
Principal Motor Accidents Claims Tribunal, Kozhikode
challenges the judgment and award of the Tribunal dated
December 29, 2003 awarding a compensation of
Rs.47,400/- for the loss caused to the claimant, on account
of the injury sustained by him in a motor accident.
2. The facts leading to this appeal, in brief, are
these:- The claimant was aged 46 at the time of the
accident and used to earn Rs.100 per day as a Painter,
according to him. On June 29, 1995 the claimant was
traveling in a K.S.R.T.C. bus bearing registration No. KL-
15/1106 (TA 145) from Kozhikode to Bangalure. When the
bus reached near Nanjangode petrol bunk, a lorry bearing
registration No. TCE 5947, driven by the second
MACA 1188/2004 2
respondent came at a high speed from the opposite side
dashed against the bus in which the claimant was traveling.
He sustained serious injuries. According to the claimant,
the accident occurred due to the rash and negligent driving
of the offending lorry by the second respondent. The first
respondent as the owner, the second respondent as the
driver and third respondent as the insurer of the offending
lorry are jointly and severely liable to pay the compensation
to the claimant. The claimant claimed a compensation of Rs.
1,50,000/-.
3. Respondents 1 and 2, owner and driver of the
offending lorry remained absent and were set ex parte by the
Tribunal. The third respondent, insurer of the offending
vehicle, filed a written statement, admitting the accident, but
denying the liability. .
4. Exts. A1 and A2 and C1 and X1 were marked on the
side of the claimant. No evidence was adduced by the
respondents. The Tribunal, on an appreciation of the
evidence, found that the accident occurred due to the
MACA 1188/2004 3
negligence on the part of the second respondent, driver of
the offending lorry, and awarded a compensation of
Rs.47,400/- with interest at the rate of 9% p.a. from the date
of petition till realization and cost. The claimant has come up
in appeal, challenging the quantum of compensation awarded
by the Tribunal.
5. Heard the learned counsel for the claimant and
learned counsel for the 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 is not challenged in this
appeal. Therefore, the only question for consideration is
whether the claimant is entitled to any enhanced
compensation.
7. Ext.A2 is the copy of the wound certificate issued
from the K.R. Hospital, Mysore. Ext.X1 is the case sheet
produced form the Medical College Hospital, Kozhikode.
Ext.C1 is the report of the Medical Board. Exts.A2, X1 and C1
would show that the claimant sustained super condylar
MACA 1188/2004 4
fracture of right humerus and lacerated injury on the
posterior part of right elbow joint. The Medical Board
assessed his disability at 10%.
8. The Tribunal awarded a total compensation of
Rs.47,400/-. Break up of the compensation awarded is as
under:-
Loss of earnings : Rs.4,500/-
Transport to hospital and : Rs.2,000/-
extra nourishment.
Future treatment : Rs.2,000/-
Medical expenses, : Rs.3,500/-
by-stander's expenses and
hospitalization charges.
Pain and suffering : Rs.10,000/-
Loss of amenities : Rs.2,000/-
and enjoyment in life.
Disability caused : Rs.23,400/-
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Total : Rs.47,400/-
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9. The learned counsel for the appellant has mainly
sought enhancement of compensation awarded under
disability caused. The Tribunal took annual income of the
claimant as Rs.15,000/-, adopted a multiplier of 13 and
awarded a compensation of Rs.23,400/- for the disability
caused. The claimant was aged 46 at the time of the
MACA 1188/2004 5
accident. According to him, he was a Painter and used to
earn Rs.100/- per day. Taking into consideration the above
aspect, we feel that his monthly income can reasonably be
fixed at Rs.2,500/-. Multiplier of 13 adopted by the Tribunal
as well as the percentage of disability as 10% as shown in
Ext.C1 is not seriously challenged in this appeal. Thus, for
the disability caused, the claimant is entitled to a
compensation of Rs.39,000/-. Thus, on this count, the
claimant is entitled to an additional amount of Rs.15,600/-.
10. The Tribunal awarded Rs.4,500/- for loss of
earnings i.e., for three months @ Rs.1,500/- per month. As we
have found that his monthly income can be fixed at
Rs.2,500/-, he is entitled to a compensation of Rs.7,500/- for
the loss of earnings. Thus, the claimant is entitled to an
additional compensation Rs.3,000/- on this count.
11. The Tribunal awarded Rs.10,000/- for the loss of
amenities and enjoyment in life, which appears to be very
low. Therefore, towards loss of amenities and enjoyment of
life, the claimant is entitled to a compensation of
MACA 1188/2004 6
Rs.10,000/- . Thus, on this count, the claimant is entitled to
an additional compensation of Rs.8,000/- As regards the
compensation awarded 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 entitled to an
additional compensation of Rs.26,600/-. He is entitled to
interest @ 9% from the date of petition till realization. The
second respondent being the insurer of the offending lorry
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