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.
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M.A.C.A NO. 150 OF 2004
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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
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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
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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
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Total : Rs. 80,840
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9. The counsel for the claimant sought enhancement of the
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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
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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)
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