IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 104 of 2004()
1. ALI, S/O. MOHAMMED, PANIKKAVEETTIL
... Petitioner
Vs
1. P. MOHAMED, S/O. KUNHUMUTTY,
... Respondent
2. ABDUL HAMEED, S/O. ABDULKADER,
3. THE MANAGER, ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.P.V.BABY
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :08/06/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI JJ.
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M.A.C.A NO. 104 OF 2004
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DATED THIS THE 8 TH DAY OF JUNE, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act,
the claimant in OP(MV) No. 587/95 on the file of Motor Accidents
Claims Tribunal, Irinjalakuda challenges the judgment and award of
the Tribunal dated May 17, 2003 awarding a compensation of
Rs. 68,000/- 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:
The claimant was aged 23 and used to earn Rs. 1,500/-
per month from fishing. On April 25,1994 at about 2.15 p.m. the
claimant was travelling in a car bearing registration No. KER 8568
from Koorikuzhi to Chenthrapinni. When he reached at
Chenthrapinni, a tempovan bearing registration No. KE10/B/4398
M.A.C.A NO. 104 OF 2004
2
came at a high speed from the opposite side and dashed against
the car in which the claimant was travelling. The claimant
sustained serious injuries. According to the claimant, the accident
occurred due to the negligence on the part of the driver of the
tempovan. The 1st respondent as the owner, the 2nd respondent as
the driver and the 3rd respondent as the insurer of the offending
tempovan are jointly and severally liable to pay compensation to
the claimant.
3. Respondnets 1 and 2 remained absent and were set
ex-parte by the Tribunal. The 3rd respondent, the insurer of the
offending tempovan filed a written statement admitting the policy
but further contended that the accident occurred due to the
negligence on the part of the driver of the car involved in the
accident.
4. In the light of the contention raised by the 3rd
respondent, the owner, driver and insurer of the car in which the
claimant was travelling were impleaded as additional respondents
M.A.C.A NO. 104 OF 2004
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4 to 6. The 4th respondent, the driver of the car filed a written
statement admitting the accident but contending that the accident
occurred due to the negligence on the part of the 2nd respondent,
the driver of the offending tempovan. The 5th respondent did not
file any written statement. The 6th respondent, the Insurer of the
car filed a written statement admitting the policy but contending
that the accident occurred due to the negligence on the part of the
2nd respondent, the driver of the offending tempovan.
5. PW1 and PW2 were examined and Exts. A1 to A8
were marked on the side of the claimant. Exts. B1 and B2 were
marked on the side of the respondents. On an appreciation of
evidence, the Tribunal found that the accident occurred due to
negligence on the part of the 2nd respondent, the driver of the
offending tempovan and awarded a compensation of Rs. 68,000/-
against respondents 1 to 3. The claimant has now come up in
appeal challenging the quantum of compensation awarded by the
Tribunal.
M.A.C.A NO. 104 OF 2004
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6. Heard the counsel for the appellant/claimant and
the counsel for the insurance company.
7. The accident is not disputed. The finding of the
Tribunal that the accident occurred due to the negligence on the
part of the 2nd respondent, the driver of the offending tempovan is
not challenged in this appeal. Therefore, the only question which
arises for consideration is whether the claimant is entitled to any
enhanced compensation ?
8. The claimant sustained the following injuries as
revealed from Ext.A4, the discharge summary issued from West
Fort, Hospital, Thrissur, wherein the claimant was treated till
13.5.1994.
“Compound Grade II comminuted fracture upper end of
radius head ulna right. Radial head dislocation”
9. Ext.A5 is the another discharge summary issued by
the same Hospital which shows that the claimant was again
admitted as inpatient on 30.10.1994 till 5.11.1994. Ext.A6 is the
disability certificate issued by the above hospital which shows that
M.A.C.A NO. 104 OF 2004
5the claimant is suffering from a permanent partial disability of 20%.
He has a disability of “radio ulnar synositis with total loss of
supination and pronation of the forearm and elbow extension”.
10. The Tribunal awarded a total compensation of Rs.
68,000/-. The break up of the award amount is as under:-
Disability caused : Rs. 27,540.00
Pain and sufferings : Rs. 10,000.00
Loss of amenities : Rs. 2,000.00
Loss of earnings for 6 months :Rs. 5,400.00
at the rate of Rs. 900/-.
Transportation expenses : Rs. 1,500.00
Medical treatment : Rs. 21,082.00
Bystander expense : Rs. 500.00
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Total: : Rs. 68,022.00
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11. The counsel for the claimant sought enhancement
of the compensation for the disability caused and for loss of
amenities and enjoyment of life.
12. The Tribunal took the monthly income of the
claimant as Rs. 900/- and assessed his disability as 15% and adopted
a multiplier of 17 and awarded a compensation of Rs. 27,540/- for
M.A.C.A NO. 104 OF 2004
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the disability caused. Taking into consideration of the fact that the
claimant was a fisherman, we feel that the monthly income of the
claimant can be reasonably fixed as Rs. 1500/-. The percentage of
disability fixed by the Tribunal appears to be reasonable. The
multiplier adopted by the Tribunal as 17 is not seriously challenged.
Therefore, the claimant is entitled to a compensation of Rs. 45,900
(1500 x 12 x 15% x 17) for the disability caused. Thus on this count,
the claimant is entitled to an additional compensation of Rs.
18,360/-.
13. For loss of amenities and enjoyment of life Rs.
2,000/- was awarded by the Tribunal which appears to be very
inadequate. Therefore, towards loss of amenities and enjoyment of
life, we feel that a compensation of Rs. 5,000/- would be
reasonable. As regards the compensation awarded under other
heads, we find the same to be reasonable.
13. Thus the claimant is entitled to an additional
compensation of Rs.23,360/-. He is entitled to interest at the rate
M.A.C.A NO. 104 OF 2004
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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