IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 288 of 2005()
1. GIRIJA W/O. MOHANDAS, AGED 35 YEARS,
... Petitioner
Vs
1. A.ASSAIN S/O. IMBICHAMMED HAJI,
... Respondent
2. NATIONAL INSURANCE CO.LTD.,
3. K.M.USMA RIYALU, AGE NOT KNOWN,
4. BUJU S/O. DIVAKARAN K., AGE NOT KNOWN
5. NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.V.N.RAMESAN NAMBISAN
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :02/11/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
- - - - - - - - - - - - - - - - - - - - -
M.A.C.A.No.288 OF 2005
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 2nd day of November, 2010
JUDGMENT
Barkath Ali, J.
Appellant is the claimant in O.P.(MV)No.842/1999 on the file of
Motor Accidents Claims Tribunal, Vadakara. She sustained the
following injuries in a motor accident that occurred on July 4, 1999 at
about 6.45 a.m.:
1. Comminuted inter condylar fracture right humerus.
2. Fracture shaft of humerus right hand.
3. Lacerated wound 15 x 10 cm. on the outer angle of
right elbow.
4. Lacerated wound 8x 3 cm. size in part angle of right
elbow.
5. Lacerated wound 8 x 3 cm. on the anteromedial of
right arm.
6. Lacerated wound 7 x 3 cm. in the right shoulder.
7. ORIF ( Operation Reduction and Internation Fixation
with twelve hole reconstruction plate)
8. Headache.
9. Backache.
10. Pain all over the body.
2. The accident happened while the claimant was travelling in
the bus bearing Reg.No.KL-11-D-2223 from Nadakkavu to Koyilandy,
it dashed against a lorry bearing Reg.No.KL-11-C-5929 driven by the
MACA.No.288/2005 2
first respondent. . Alleging negligence against the first respondent, the
claimant filed the O.P. before the Tribunal under Section 166 of Motor
Vehicles Act claiming a compensation of Rs. 3,00,000/-.
3. Respondents 1 and 2 are the driver and insurer of the
offending lorry. Respondents 3 to 5 are the owner, driver and insurer
of the bus in which the claimant was travelling. Respondent Nos. 1, 3
and 4 remained absent before the Tribunal. The second and fifth
respondents filed written statements admitting the policy of the
respective vehicles.
4. PW1 was examined and Exts.A1 to A14 were marked on
the side of the claimant before the Tribunal. Ext.B1 was marked on the
side of the fifth respondent. No evidence was adduced by the second
respondent. The Tribunal on an appreciation of evidence found that
the accident occurred due to the rash and negligent driving of the
offending lorry by first respondent and awarded a compensation of
Rs.1,32,050/- with interest @ 6% per annum from the date of petition
till realisation and a cost of Rs. 3,500/-. The claimant has now come up
in appeal challenging the quantum of compensation awarded by the
Tribunal.
MACA.No.288/2005 3
5. Heard the counsel for the appellant/claimant and the
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 first
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 break up of the compensation awarded is as under :
Pain and suffering - Rs. 15,000/-
Loss of amenities - Rs. 3,000/-
Loss of earning - Rs. 4,500/-
Transportation - Rs. 2,000/-
Extra nourishment - Rs. 2,000/-
Damage to clothing - Rs. 250/-
Medical expenses - Rs. 8,500/-
Disability - Rs. 91,800/-
8. Counsel for the claimant sought enhancement of
compensation for the disability caused, for loss of amenities and
enjoyment of life and on other heads.
9. The Tribunal took the monthly income of the claimant as
Rs.1,500/-, took the percentage of disability as 30% as certified by the
Medical Board in Ext.A14, adopted a multiplier of 17 as the claimant
MACA.No.288/2005 4
was aged 25 at the time of the accident and awarded Rs. 91,800/-
for the disability caused. According to the claimant, she was working
as Collection agent with Chemmannur Fashion Jewellers earning
Rs. 3,000/- per month. Ext.A12 is the certificate issued by her
employer. Taking into consideration the above aspect, we feel that the
monthly income of the claimant can be reasonably fixed at Rs. 2,000/-.
The percentage of disability as 30% and the multiplier of 17 taken by
the Tribunal are not seriously challenged. Thus calculated for the
disability caused, the claimant is entitled to a compensation of
Rs. 1,22,400/- ( 30% % x 2000 x 12 x 17). Thus on this count, the
claimant is entitled to an additional compensation of Rs.30,600/-.
10. The Tribunal awarded Rs.3,000/- for 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 compensated of Rs. 10,000/- would be reasonable on this
count. As regards the compensation awarded under other heads, we
find the same to be reasonable and therefore are not disturbing the
same.
11. There is another aspect in this case. The Tribunal awarded
MACA.No.288/2005 5
Rs. 4,500/- towards loss of income for 3 months @ Rs. 1,500/- per
month. As we have fixed the monthly income of the deceased as
Rs. 2,000/-, he is entitled to a compensation of Rs. 6,000/- towards loss
of income. Thus on this count, the claimant is entitled to an additional
compensation of Rs. 1,500/-.
12. The total amount awarded under various heads comes to
Rs. 1,27,050/-. But the Tribunal awarded Rs. 1,32,050/-. Therefore,
the amount awarded by the Tribunal is corrected as Rs. 1,27,050/-.
13. The Tribunal awarded interest only @ 6% per annum
which appears to be very low. The claimant is entitled to interest @
7.5% per annum from the date of petition till realisation for the
compensation already awarded and also for the enhanced
compensation.
14. In the result, the amount awarded by the Tribunal is
corrected as Rs.1,27,050/-. The claimant is entitled to an additional
compensation of Rs. 39,100/-. She is entitled to interest @ 7.5% per
annum from the date of petition till realisation for the compensation
already awarded and also for the enhanced compensation and
proportionate cost. The second respondent being the insurer of the
MACA.No.288/2005 6
offending vehicle shall deposit the amount before the Tribunal within
two months from the 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.288/2005 7