High Court Kerala High Court

M.Samikuty vs K.Madhumohan on 7 April, 2010

Kerala High Court
M.Samikuty vs K.Madhumohan on 7 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 32 of 2008()


1. M.SAMIKUTY, AGED 47 YEARS,
                      ...  Petitioner

                        Vs



1. K.MADHUMOHAN, S/O.V.R.NAIR,
                       ...       Respondent

2. THE BRANCH MANAGER,

                For Petitioner  :SRI.JACOB ABRAHAM

                For Respondent  :SRI.T.J.LAKSHMANAN IYER

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :07/04/2010

 O R D E R
            A.K.BASHEER & P.Q. BARKATH ALI, JJ.
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                 M.A.C.A. No. 32 of 2008
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             Dated this the 7th day of April, 2010

                         JUDGMENT

Barkath Ali, J:

In this appeal under section 173 of the Motor

Vehicles Act claimant in O.P.(MV) No.694 of 1998 of the II

Addl. Motor Accidents Claims Tribunal, Kozhikode

challenges the judgment and award of the Tribunal dated

May 10, 2007 awarding a compensation of Rs. 15,500/- for

the loss caused to the claimant, on account of the injury

sustained by him in a motor accident.

2. The facts leading to this appeal, in brief, are

these:- The claimant was aged 47 at the time of the

accident and used to earn more than Rs.3,000/- per month

as a coolie, according to the claimant. On November 8,

1997 at about 9.30 p.m. while the claimant was walking

along the side of the Calicut – Ramanattukara Bye-pass

road and reached at Manalthazham, he was knocked

down by a car bearing registration No.TN-09/Z-6258. The

MACA 32/2008 2

claimant sustained very serious injuries. According to the

claimant, the accident occurred due to a rash and negligent

driving of the offending car by its driver. The first

respondent as the owner, the second respondent as the

insurer of the car are jointly and severally liable to pay the

compensation to the claimant. The claimant claimed

compensation of Rs.2 lakhs.

3. The first respondent, owner of the offending car, did

not file any written statement before the Tribunal. The second

respondent, insurer of the offending car, filed a written

statement, admitting the policy.

4. Exts. A1 to A6 series were marked on the side of the

claimant. No evidence was adduced by the contesting second

respondent. The Tribunal, on an appreciation of the evidence,

awarded a compensation of Rs.15,500/- with interest at the

rate of 6% p.a. from the date of petition till realization. The

claimant has come up in appeal, challenging the quantum of

compensation awarded by the Tribunal.

5. Heard the learned counsel for the appellant and

MACA 32/2008 3

learned counsel for the second respondent.

6. The accident is not disputed. The finding of the

Tribunal that the accident occurred due to the negligence on

the part of the driver of the offending car is not seriously

challenged in this appeal. Therefore, the only question for

consideration is whether the claimant is entitled to any

enhanced compensation.

7. The claimant sustained the following injuries, as

revealed from Ext.A2 copy of the wound certificate issued from

the hospital:-

1) Lacerated wound left side of forehead 10 x 2 bone

deep.

2) Lacerated wound forehead middle 3 x 1 cm.

3) Lacerated chin 4 x 1 cm.

4) Lacerated wound right side of chest 2 x 1 cm.

5) Lacerated wound mucosal aspect of lower lip 2 x 1 cm.

6) Lacerated wound below right eye 3 x 1 cm.

7) Multiple abrasion face both legs and knee.

Ext.A3 the discharge card issued from the Medical College

MACA 32/2008 4

Hospital, Kozhikode shows that he was admitted on 8-11-1997

and discharged on 17-11-1997. Ext.A4 C.T. scan report shows

that mucosal thickening in both maxillary sinus and nominal

amount of fresh blood in right nasal cavity. Ext.A5 is the case

record produced from the Dental College, Kozhikode. Ext.X1

report of the Medical Board shows that the claimant has lost

one tooth, sustained injuries to two teeth and he has suffered

disability at 1%.

8. The Tribunal awarded a total compensation of

Rs.15,500/-. Break up of the compensation awarded is as

under:-

      Transport to hospital            :    Rs.400/-
      Extra nourishment                :    Rs.400/-
      Damage to clothing               :    Rs.300/-
      Medical expenses                 :    Rs.2,200/-
      By-stander's expenses            :    Rs.900/-
      Pain and suffering               :    Rs.7,500/-
      Temporary loss of earning        :    Rs.1,250/-
      for one month.
      Disability caused                :    Rs.2,500/-
                                            ------------------
           Total                       :    Rs.15,500/-
                                            =======

MACA 32/2008                 5

9. The learned counsel for the appellant has mainly

sought enhancement of compensation awarded under

disability caused, pain and suffering and for loss of amenities

and enjoyment in life.

10. The Tribunal awarded Rs.7,500/- for pain and

suffering, which appears to be very low. Taking into account

the nature of the injuries sustained, we feel that a

compensation of Rs.15,000/- would be reasonable on this

count.

11. The claimant lost one tooth and sustained injuries to

two teeth. The Tribunal did not award a compensation for loss

of amenities and enjoyment in life . Therefore, on this count,

we feel that a compensation of Rs.20,000/- would be

reasonable.

12. Rs.2,500/- was awarded for the disability caused.

The Tribunal took monthly income of the claimant as

Rs.15,000/- per annum, adopted a multiplier of 17 and took

disability as 1%. Taking into consideration the nature of the

injuries sustained and that the claimant has bi-medial condyle

MACA 32/2008 6

tibia fracture, we feel that a compensation of Rs.10,000/-

would be reasonable for the disability caused. As regards the

compensation awarded under other heads, we find the same to

be reasonable and therefore, we are not disturbing the same.

13. In the result, the claimant is entitled to an additional

compensation of Rs.35,000/-. He is entitled to interest @

7.5% from the date of petition till realization and proportionate

cost. The second respondent, being the insurer of the

offending car, shall deposit the amount within two months

from the date of receipt of a copy of this judgment with notice

to the claimant. 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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