IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 905 of 2008()
1. GEORGE, S/O.VAKKACHAN,
... Petitioner
Vs
1. THE MANAGING DIRECTOR,
... Respondent
2. JEROME, S/O.SEBASTIAN,
3. NATIONAL INSURANCE CO.LTD.,
4. THE NEW INDIA ASSURANCE COMPANY LTD.,
For Petitioner :SRI.K.A.SEBASTIAN
For Respondent :SMT.SARAH SALVY
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :31/05/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI JJ.
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M.A.C.A NO. 905 OF 2008
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DATED THIS THE 31TH DAY OF MAY, 2010
JUDGMENT
Barkath Ali J.
In this appeal under Section 173 of Motor Vehicles Act,
the claimant in OP(MV)No. 1565/99 on the file of the Motor
Accidents Claims Tribunal, Ernakulam challenges the judgment
and award of the Tribunal dated 2-6-2007 awarding a
compensation of Rs. 1,01,770/- for the loss caused to him on
account of the injuries sustained in a motor accident.
2. The facts leading to this appeal in brief are these:
The claimant was aged 38 at the time of the accident and
was earning Rs. 8,000/- per month by running a workshop. On
1.5.1999 at about 9.30 p.m. the claimant was riding on a motor
cycle bearing registration No. KET 1598 along Kakkanad-
Palarivattom Road. When he reached near Chembumukku
another motor cycle bearing registration number KL7/H-8344
came at a high speed behind and dashed against the motor
M.A.C.A NO. 905 OF 2008
2
cycle of the claimant. The claimant sustained very serious
injuries. According to the claimant, the accident occurred due
to the rash and negligent riding of the motor cycle bearing
registration No. KL7/H-8344 by the 2nd respondent. The 1st
respondent as the owner, 2nd respondent as the rider and 3rd
respondent as the insurer of the offending motor cycle are
jointly and severally liable to pay compensation to the
claimant.
3. The Claimant claimed a total compensation of Rs. 3 lakhs.
4th respondent is the insurer of the motor cycle of the
claimant.
4. Respondents 1 and 2, the owner and rider of the offending
motor cycle remained absent and was set ex-parte by the
Tribunal. The 3rd respondent, insurer of the offending motor
cycle filed a written statement admitting the policy and
further contending that there was no negligence on the part of
M.A.C.A NO. 905 OF 2008
3
the claimant. The 4th respondent, the insurer of the motor
cycle of the claimant filed a written statement admitting the
policy but contended that the accident occurred due to the
negligence on the part of the 2nd respondent.
5. Exts. A1 to A11 were marked by the Tribunal on the side
of the claimant. No evidence was adduced by the contesting
respondents 3 and 4. On an appreciation of evidence, the
Tribunal awarded a compensation of Rs. 1,01,77/- with
interest @ 7.5% per annum from the date of petition till
realization. The claimant has now come up in appeal
challenging the quantum of compensation awarded by the
Tribunal.
6. The claimant sustained the following injuries as revealed
from Ext.A8, copy of the wound certificate issued by the
Ernakualm Medical Centre hospital;
Abrasions on right leg and fracture of both bones right
leg.
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7. Ext.A9, the treatment certificate shows that interlocking
nailing, fasciotomy and skin grafting were done. He was
admitted on 1.5.1999 and was discharged on 29.5.1999. Ext.A7
is the series of photographs showing the present stage of the
fractured leg.
8. The Tribunal awarded a total compensation of Rs.
1,01,770/-. The break up of the award amount is as under:
Transportation, hospitalization, )
attendant expenses, extra nourishment )Rs. 3,000/-
& damage to clothings. )
Medical expenses Rs. 45,770/-
Loss of earnings Rs. 10,000/-
Pain and suffering Rs. 20,000/-
For discomforts, inconveniences & Rs. 15,000/-
loss of amenities.
Discolouration causing disfiguration Rs. 8,000/-
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Total: Rs.1,01,770/-
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9. Counsel for the claimant pointed out that no
compensation was awarded for the disability caused. He has
sought enhancement of compensation for pain and suffering,
M.A.C.A NO. 905 OF 2008
5loss of amenities and for disfigurement. Ext.A11,the certificate
issued by the Medical Board attached to the General Hospital,
Ernakulam shows that claimant has now a permanent disability
of 14% and he has restriction in knee and ankle movements.
The Tribunal took the monthly income of the claimant as Rs.
2,500/- . As the petitioner did not examine himself before the
Tribunal, no compensation was awarded for the disability
caused. But the certificate Ext.A11 shows that the claimant has
now some permanent disability. Taking into consideration the
disability mentioned in Ext.A11, we feel that percentage of
disability can be assessed at 10%. As according to the
claimant, he was running a workshop and aged 38, we feel that
the monthly income of the claimant can be reasonably fixed as
Rs. 3,000/- and 16 would be proper multiplier as per the 2nd
schedule of Motor Vehicles Act. Thus calculating for the
disability caused, the claimant is entitled to a compensation of
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Rs. 57,600/-.
10. The Tribunal awarded Rs. 10,000/- for loss of earnings ie.
for 4 months at the rate of Rs. 2,500/- per month. We have
fixed the monthly income as Rs. 3,000/-. Therefore, on this
count, he is entitled to a compensation of Rs. 12,000/- for 4
months at the rate of Rs. 3,000/- per month. As regards
compensation awarded under other heads, we find the same to
be reasonable and that therefore, we are not disturbing the
same.
11. In the result, the claimant is entitled to an additional
compensation of Rs. 59,600/-. He is entitled to interest @ 8%
per annum from the date of award 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 a copy of this
judgment. The award of the Tribunal is modified to the above
M.A.C.A NO. 905 OF 2008
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extent.
The appeal is disposed of as found above.
A.K. BASHEER (JUDGE)
P.Q. BARKATH ALI (JUDGE)
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