IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1672 of 2004()
1. KUNJAMMA VARGHESE,
... Petitioner
Vs
1. MARIAMMA ZACHARIAH,
... Respondent
2. J.THAMPI, S/O.R.JOY,
3. THE BRANCH MANAGER,
For Petitioner :SRI.PHILIP M.VARUGHESE
For Respondent :SMT.M.HEMALATHA
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :11/03/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.1672 OF 2004
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Dated this the 11th day of March, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimant in O.P.(MV)No.77/1995 of Motor Accidents Claims Tribunal,
Pathanamthitta challenges the judgment and award of the Tribunal
dated May 24, 2004 awarding a compensation of Rs. 41,000/- 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 lady aged 56. According to her, she is doing
agricultural work earning Rs. 2,000/- per month. On August 4, 1994 at
about 10.00 a.m., she was pillion riding on a scooter bearing
Reg.No.KRU 6142 ridden by her son along Konny-Pathanamthitta
road. When they reached at Kollanpady junction, a bus bearing
Reg.No.KRB 3486 driven by second respondent came at a high speed
and knocked them down. Claimants sustained very serious injuries.
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According to the claimant, the accident occurred due to rash and
negligent driving of the offending bus by second respondent. First
respondent as the owner, second respondent as the driver and third
respondent as the insurer of the offending bus are jointly and severally
liable to pay compensation to the claimant. Claimant claimed a
compensation of Rs. 3lakhs.
3. First respondent, the owner of the offending bus filed a
written statement admitting the accident, but contending that the
accident occurred due to the negligence of the rider of the motor cycle.
Second respondent, the driver of the offending bus remained absent
and was set ex parte by the Tribunal. The third respondent the insurer
of the offending bus filed a written statement admitting the policy.
4. Claimant was examined as PW1 and Exts.A1 to A9 were
marked on her side before the Tribunal. No evidence was adduced by
contesting respondents 1 and 3. The Tribunal on an appreciation of
evidence found that the accident occurred due to the rash and negligent
driving of the offending bus by second respondent and awarded a
compensation of Rs. 41,000/-. The claimant has now come up in
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appeal challenging the quantum of compensation awarded by the
Tribunal.
5. Heard the counsel for the 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 Tribunal awarded a total compensation of Rs. 41,000/-.
The break up of the award amount is as under :
Loss of earning -Rs. 6,000/-
Transport to hospital -Rs. 2,000/-
Medical expenses -Rs. 9,000/-
Bystander's expenses -Rs. 3,000/-
Pain and suffering -Rs. 5,000/-
Disability -Rs. 16,000/-
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Total -Rs. 41,000/-
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8. The counsel for the appellant/claimant sought enhancement
of compensation for the disability caused and pain and suffering
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endured by the claimant. It is also pointed out by the counsel for the
claimant that no compensation was awarded for the loss of amenities
and enjoyment of life. There is force in the above contention.
9. The claimant sustained the following injuries :
Fracture clavicle(Rt), serious head injury pelvic fracture(Rt) both
upper and inferior public region multiple laceration.
10. Ext.A9 is the certificate of disability issued from the
Medical College Hospital, Kottayam which is shows that the claimant
has now 11% disability. She was aged 56. The Tribunal took the
monthly income of the claimant as Rs. 1500/- and accepted the 11%
disability noted in Ext.A9 and adopted a multiplier of 8 and awarded a
compensation of Rs. 16,000/- towards disability caused.
11. Taking into account the fact that the claimant was working
as an agriculturist as testified by her as PW1, we feel that her monthly
income can be reasonably fixed at Rs. 2,000/-. The percentage of
disability and the multiplier adopted by the Tribunal are not seriously
challenged. Thus calculated for the disability caused, the claimant is
entitled to a compensation of Rs. 21,120/- ( 11% x 2000 x 12 x 8).
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Thus on this count, the claimant is entitled to an additional
compensation of Rs. 5,120/-.
12. For the pain and suffering endured by the claimant, the
Tribunal awarded a compensation of Rs. 5000/- which appears to be
very low. Taking into account the nature of the injury sustained by the
claimant, we feel that a compensation of Rs. 10,000/- would be
reasonable on this count. Thus on this count, the claimant is entitled to
an additional compensation of Rs. 5,000/-.
13. There is another aspect in this case. The Tribunal awarded
Rs. 6000/- for loss of earnings i.e. for four months @ Rs. 1500/- per
month. We have fixed the monthly income of the claimant as
Rs. 2,000/-. Therefore, on this count, the claimant is entitled to a
compensation of Rs. 8,000/-. Thus on this count, the claimant is
entitled to an additional compensation of Rs.2,000/-. Regarding the
compensation awarded under other heads, we find the same to be
reasonable . Therefore, we are not disturbing the same.
14. In the result, the claimant is entitled to an additional
compensation of Rs. 12,120/-. She is entitled to interest @ 9% per
MACA.No.1672/04 6
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.
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