IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 881 of 2004()
1. N.I.SHAJAHAN @ SHAMON,
... Petitioner
Vs
1. SAJU DOMINIC, KARIKKATTUKUNNEL HOUSE,
... Respondent
2. ROY THOMAS, MRALAYIL HOUSE,
3. ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SMT.MINI ELIZABETH GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :21/06/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
- - - - - - - - - - - - - - - - - - - - -
M.A.C.A.No.881 OF 2004
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 21st day of July, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimant in O.P.(MV)No.2615/1998 of Motor Accidents Claims
Tribunal, Kottayam challenges the judgment and award of the Tribunal
dated August 12, 2003 awarding a compensation of Rs. 38,170/- 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 :
The claimant was aged 22 at the time of the accident and used to
earn Rs. 2,000/- per month from scrap iron business, according to him.
On June 15, 1998, claimant was travelling in an autorickshaw bearing
Reg.No.KEK 8226. At that time, a jeep bearing Reg.No.KL 5A 3389
driven by the second respondent came at a high speed and dashed
against the autorickshaw in which the claimant was travelling. The
claimant sustained serious injuries. According to the claimant, accident
occurred due to the rash and negligent driving of the offending jeep by
second respondent. First respondent as the owner, second respondent
MACA.No.881/04 2
as the driver and third respondent as the insurer of the offending jeep
are jointly and severally liable to pay compensation to the claimant.
Claimant claimed a compensation of Rs. 1,50,000/-.
3. Respondents 1 and 2, the owner and driver of the offending
jeep remained absent and were set ex parte by the Tribunal. The third
respondent the insurer of the offending jeep filed a written statement
admitting the policy, but contended that the accident occurred due to
the negligence on the part of the driver of the autorickshaw involved in
the accident.
4. Exts.A1 to A7 were marked on the side of the claimant
before the Tribunal. No evidence was adduced by the contesting third
respondent. The Tribunal on an appreciation of evidence found that the
accident occurred due to the rash and negligent driving of the offending
jeep by second respondent and awarded a compensation of Rs. 38,170/-
with interest @ 7% per annum from the date of petition till realisation
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
counsel for the Insurance Company.
MACA.No.881/04 3
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 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.A2, the copy of the wound certificate and Ext.A3, the O.P.
ticket.
1. Fracture of both bones of left forearm.
2. Fracture of right fibula.
3. Laceration on the face left side.
Ext.A4, the certificate of disability shows that claimant has now
12% disability. In Ext.A4, it is stated that the claimant has the
following disabilities :
1. Limitation of terminal 15 of extension of Lt elbow.
2. Limitation of terminal 10 of supination pronation with
inferior radio-ulnar instability ( Piano Sign positive)
3. Chronic ankle pain ( lt).
8. The Tribunal awarded a total compensation of Rs.38,170/-.
The break up of the compensation awarded is as under :
Loss of earnings - Rs. 4,500/-
Treatment expenses - Rs.1,250/-
Transportation expenses - Rs.1,000/-
MACA.No.881/04 4
Pain and suffering - Rs. 10,000/-
Disability - Rs. 21,420/-
9. Counsel for the claimant sought enhancement of
compensation for the disability caused and loss of amenities and
enjoyment of life.
10. The Tribunal took the monthly income of the claimant as
Rs. 1500/- , took the percentage of disability as 7% , adopted a
multiplier of 17 and awarded Rs.21,420/- for the disability caused. The
claimant was aged 22 at the time of the accident and used to earn
Rs. 4,000/- per month from Scrap Iron business as stated by him in the
petition . Taking into consideration these aspects, we feel that the
monthly income of the claimant can be reasonably fixed at Rs. 2,000/-.
The multiplier of 17 adopted by the Tribunal appears to be reasonable
in this case. Taking into consideration the nature of the injury
sustained and the disability caused, we feel that the percentage of
disability caused to the claimant can be assessed at 10%. Thus
calculated for the disability caused, the claimant is entitled to a
compensation of Rs. 40,800/- ( 2000 x 12 x 17 x 10%). Thus on this
count, the claimant is entitled to an additional compensation of
Rs. 19,380/-.
MACA.No.881/04 5
11. No compensation was awarded by the Tribunal for loss of
amenities and enjoyment of life. Taking into consideration the nature
of the injury sustained by the claimant and the disability caused, we
feel that a compensation of Rs.10,000/- would be reasonable for the
loss of amenities and enjoyment of life. As regards the compensation
awarded under other heads, we find the same to be reasonable and
therefore are not disturbing the same.
12. In the result, the claimant is entitled to an additional
compensation of Rs. 29,380/-. He is entitled to interest @ 7% per
annum from the date of petition till realisation and proportionate cost.
The third respondent being the insurer of the 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.881/04 6