IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 873 of 2004()
1. JOSEPH JOHN @ SAJI,
... Petitioner
Vs
1. M.V.KUNJUPANICKAN, MUNDUCHIRA,
... Respondent
2. APPUKUTTAN, S/O.KUTTAPPAN,
3. NATIONAL INSURANCE CO.LTD.,
For Petitioner :SMT.MINI ELIZABETH GEORGE
For Respondent :SRI.E.M.JOSEPH
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :27/05/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
- - - - - - - - - - - - - - - - - - - - -
M.A.C.A.No.873 OF 2004
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 27th day of May, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimant in O.P.(MV)No.1261/1998 of Motor Accidents Claims
Tribunal, Kottayam challenges the judgment and award of the Tribunal
dated July 9, 2003 awarding a compensation of Rs. 29,300/- 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 is a labourer aged 21 at the time of accident earning
Rs. 3,000/- per month, according to him. On August 19, 1997 at about
9.30 a.m., while he was walking along Sasthri Road, Kottayam, he was
knocked down by a goods autorickshaw bearing Reg.No.KL 4A 3447
driven by the second respondent. The claimant sustained serious
injuries. According to the claimant, accident occurred due to the rash
and negligent driving of the offending good autorickshaw by second
MACA.No.873/2004 2
respondent. First respondent as the owner, second respondent as the
driver and third respondent as the insurer of the offending
autorickshaw 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
bus remained absent and were set ex parte by the Tribunal. The third
respondent the insurer of the offending autorickshaw filed a written
statement admitting the policy, but contending that the accident
occurred due to the negligence of the claimant.
4. This O.P. was jointly tried along with O.P.(MV)
No.1500/98 and O.P.(MV)No.2054/1999 which were the claims made
by the other injured persons in the accident and a common award was
passed. Pws 1 and 2 were examined and Exts.A1 to A15 were marked
on the side of the claimant before the Tribunal. No evidence was
adduced on the side of the respondents. The Tribunal on an
appreciation of evidence found that the accident occurred due to the
rash and negligent driving of the offending autorickshaw by second
respondent and awarded a compensation of Rs. 29,300/- with interest
MACA.No.873/2004 3
@ 9% per annum from the date of petition till realisation. The claimant
has 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.
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.A3, the copy of the wound certificate issued from the
hospital.
1. Lacerated wound on the forehead.
2. Abrasion on the left ankle and
contusion on the foot.
3. Fracture of both bones of the left leg.
8. The claimant was in hospital for 47 days. Ext.A7 series are
bills . Ext.A5, the certificate of disability issued by the doctor shows
that the petitioner has 12% disability.
MACA.No.873/2004 4
9. The Tribunal awarded a total compensation of Rs.29,300/-.
The break up of the compensation awarded is as under :
Loss of earnings - Rs. 4,500/-
Treatment expenses - Rs. 3,000/-
Transportation expenses - Rs. 1,000/-
Pain and suffering - Rs. 10,000/-
Disability - Rs. 10,800/-
10. Counsel for the claimant sought enhancement of
compensation for the disability caused, for pain and suffering endured
and for loss of amenities and enjoyment of life.
11. The Tribunal took the monthly income of the claimant as
Rs. 1,500/- and took the disability as 4% and awarded a compensation
of Rs. 10,800/- for the disability caused. Taking into consideration the
fact that the claimant is a labourer aged 21, we feel that his monthly
income can be reasonably fixed at Rs. 2,000/-. The Tribunal assessed
the percentage of disability as 4%. But taking into consideration the
nature of injury sustained and as in Ext.A9, the doctor has certified that
the claimant has suffered a permanent disability of 12%, we feel that
MACA.No.873/2004 5
the percentage of disability caused to the claimant can be assessed at
8%. As the claimant was aged only 21, the multiplier that can be
adopted in this case is 17. Thus calculated for the disability caused, the
claimant is entitled to a compensation of Rs. 32,640/- ( 8% x 2000 x 12
x 17). Thus, on this count, the claimant is entitled to an additional
compensation of Rs. 21,840/-.
12. For the pain and suffering endured by the claimant, a
compensation of Rs. 10,000/- was awarded by the Tribunal which
appears to be very low. Having regard to the nature of the injury
sustained, we feel that a compensation of Rs. 15,000/- would be
reasonable on this count.
13. For loss of amenities and enjoyment of life, no
compensation was awarded by the Tribunal. Having regard to the
nature of the injury sustained, we feel that a compensation of Rs.
15,000/- would be reasonable on this count.
14. For loss of earnings, Rs. 4500/- was awarded by the
Tribunal i.e. for 3 months @ Rs. 1500/- per month. We have fixed the
monthly income of the claimant as Rs. 2000/-. Therefore, towards loss
MACA.No.873/2004 6
of earnings, he is entitled to a compensation of Rs. 6,000/-. Thus, on
this count, he is entitled to an additional compensation of Rs. 1,500/-.
As regards the compensation awarded under other heads, we find the
same to be reasonable and therefore are not disturbing the same.
15. In the result, the claimant is entitled to an additional
compensation of Rs. 43,340/-. He is entitled to interest @ 9% 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.873/2004 7
MACA.No.873/2004 8