IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 355 of 2004()
1. K.R.JACOB, S/O.KARAYAMPARAMBIL RAPPAI,
... Petitioner
Vs
1. K.P.PRASANNAN @ K.P.PARAMESWARAN,
... Respondent
2. P.M.HAZNAR, S/O. MOIDEEN,
3. NATIONAL INSURANCE CO., NORTH PARUR.
For Petitioner :SRI.P.V.BABY
For Respondent :SMT.SARAH SALVY
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :20/05/2010
O R D E R
A.K.BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. No. 355 of 2004
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Dated this the 20th day of May 2010
J U D G M E N T
Barkath Ali, J:
In this appeal under section 173 of the Motor
Vehicles Act claimant in O.P.(MV) No. 515 of 1995 on the
file of Motor Accidents Claims Tribunal, Irinjalakuda
challenges the judgment and award of the Tribunal dated
June 27, 2003, awarding a compensation of Rs.1,36,768/-
for the loss caused to the claimants, on account of the injury
sustained by him in a motor accident.
2. The facts leading to this appeal, in brief, are
these:- On August 11, 1994 at about 10.30 p.m. the
claimant was pillion riding on a scooter bearing
Registration No.KBR 3215 along Kattoor road. When he
reached at convent junction Edathiruthi a car bearing
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Registration No.KLH 068 driven by the 2nd respondent
came at a high speed and dashed against the scooter of
the claimant. The claimant sustained serious injuries.
According to the claimant the accident occurred due to the
rash and negligent driving of the offending car by the 2nd
respondent. 1st respondent as the owner, 2nd respondent
driver and the 3rd respondent, the insurer of the offending
car are jointly and severally liable to pay compensation to
the claimant.
3. The respondents 1 and 2, the owner and the
driver of the offending car remained absent and were set
ex parte. The 3rd respondent, the Insurer of the offending
car filed a written statement admitting the policy and
further contending that there was also negligence on the
part of the rider of the scooter.
4. Pws.1 & 2 and Exts.A1 to A15 were marked on the
side of the claimant. No evidence was adduced by the
contesting 3rd respondent.
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5. 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 is not challenged in this
appeal. Therefore, the only question which arises for
consideration is whether the claimant is entitled to any
enhanced compensation.
6. The claimant has sustained the following injuries
as revealed from Ext.A6, copy of the wound certificate
issued from the West Fort Hospital, Thrissur and Ext.A7,
the discharge summary issued from that hospital :-
1. Crush injury right foot, extensive lacerated wound
dorsum of right foot.
2. Compound fracture right tibia.
3. Fracture 2nd, 3rd, 4th and 5th meta tarsal right foot.
4. Extensor tendon injuries.
He was in the hospital till September 21, 1994. He was
managed by Dynamic Axial external fixation with bone
grafting. ‘K’ wire was fixed for the fracture of metatarsals.
He had to undergo daily dressing and physiotherapy due to
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the stiffness to the joints for a period of ten months.
Ext.A13 is the certificate to that effect issued from the
hospital. Ext.A13, the certificate of disability issued by PW2
shows that the claimant has now a disability of 25%.
7. The Tribunal awarded a total compensation of
Rs.1,36,768/-. Break up of the compensation awarded is as
under:-
Loss of earnings : Rs.65,088/-
(1 year @ Rs.5,489/- per month)
Medical expenses : Rs.35,400/-
Transportation expenses : Rs.2,000/-
Bystander expenses : Rs.2,000/-
For the disability caused and
loss of earnings : Rs.17,280/-
Pain and suffering : Rs.10,000/-
For loss of amenities and
enjoyment of life : Rs.5,000/-
-------------------
Total : Rs.1,36,768/-
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8. The learned counsel for the Claimant sought
enhancement of the compensation for the disability caused,
for pain and suffering, for loss of amenities and for loss of
earnings. Ext.A15 produced by the claimant shows that he
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was employed as Sub Engineer in the Kerala State
Electricity Board and was drawing a salary of Rs.5,489/- per
month. He was aged 47 at the time of the accident. The
Tribunal awarded loss of earnings for one year ie;
Rs.65,088/-, but actually the claimant produced documents
to show that he was on leave for 26 months and 7days due
to the injury sustained. Therefore, for loss of earnings, the
claimant is entitled to Rs.76,846/- being the salary for 26
months @ Rs.5,489/- per month.
9. For pain and suffering due to injury, the Tribunal
awarded a compensation of Rs.10,000/-, which appears to
be quite inadequate. Taking into consideration the nature
of injury sustained, we feel that Rs.20,000/- would be
reasonable on this count.
10. For loss of amenities, Rs.5,000/- was awarded by
the Tribunal, which appears to be very low. Having regard
to the nature of injury sustained by the claimant, we feel
that Rs.10,000/- would be reasonable on this count.
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11. For the disability caused and for the
consequential loss of earning power Rs.17,280/- was
awarded by the Tribunal as compensation. The Tribunal
took the monthly income of the claimant as Rs.1,200/-
adopted a multiplier of 8 and took the percentage of
disability as 25%. PW2, the doctor who issued Ext.A13, the
certificate of disability has testified that claimant has loss of
soft tissue for the medial compartments of right leg, meta
tarsal fractures have mal united with persistant subluxation
and osteo arthritis and loss of muscles and that there is
shortening of right leg by 2c.m and right foot by 1c.m. The
grafted area of the right leg had decreased sensation. The
patient was limping. PW2 had further testified before the
Tribunal that the claimant has difficulty to stand for long
time, to run, to jump, carry heavy weight, to walk for long
distance and to drive vehicles. We are of the view that, the
percentage of disability caused to the claimant can be
reasonably estimated and assessed at 20%.
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12. The monthly income of the claimant was taken by
the Tribunal as Rs.5,489/-. But for assessing the
compensation of the disability caused, the Tribunal took the
monthly income of the claimant as Rs.1,200/- and took the
disability as 15%. In the light of the salary certificate
Ext.A15, we feel that the monthly income for the purpose of
assessing the compensation for the disability caused can be
reasonably fixed at Rs.3,000/-. The multiplier adopted as 8
by the Tribunal is not seriously challenged. Thus, for the
disability caused the claimant is entitled to a compensation
of Rs.57,600/-. Thus on this count, the claimant is entitled
to an additional compensation of Rs.40,320/-. As regards
the compensation awarded under other heads, we find the
same to be reasonable and therefore, we are not disturbing
the same.
13. Thus, the claimant is entitled to an additional
compensation of Rs.67,078/-. He is entitled to interest @
9% per annum from the date of petition till realisation and
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proportionate cost. The 3rd respondent being the Insurer of
the offending car shall deposit the amount before the
Tribunal within two months from the date of receipt of a
copy of this judgment. The impugned award is modified to
the above extent.
The appeal is disposed of as found above.
A.K.BASHEER,
JUDGE.
P.Q. BARKATH
ALI, JUDGE.
jvt