IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 330 of 2007()
1. MADHAVAN, S/O.KRISHNAN,
... Petitioner
Vs
1. SHAJIMON, S/O.ABOOBACKER,
... Respondent
2. T. MOIDEENKUTTY, S/O.KUNJUTTY,
3. M/S.ORIENTAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent :SRI.P.V.JYOTHI PRASAD
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :18/02/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.330 OF 2007
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Dated this the 18th day of February, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimant in O.P.(MV)No.3003/2000 challenges the judgment and
award of the Motor Accidents Claims Tribunal, Thrissur dated
March 1, 2005 awarding a compensation of Rs. 1,24,200/- for the loss
caused to the claimant on account of the injury sustained in a motor
accident.
2. The facts in brief are these :
The claimant/appellant is a head load worker aged 40. On
September 19, 2000 at about 3.30 p.m. while he was walking along the
side of Mezhathur junction, a tempo trax bearing Reg. No.KL.9/C.406
came from behind and knocked him down causing serious injuries to
him . According to the claimant, the accident occurred due to the rash
and negligent driving of the offending vehicle by the second
respondent, the driver of the offending vehicle. The first respondent as
the owner and second respondent as the driver and third respondent as
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the insurer of the offending vehicle are jointly and severally liable to
pay compensation to the claimant.
3. Respondents 1 and 2, the owner and driver of the offending
vehicle remained absent and were set ex parte by the Tribunal. Third
respondent, the insurer of the offending vehicle filed a written
statement admitting the policy.
4. The claimant was examined as PW1 and Exts.A1 to A18
were marked on the side of the claimant. Exts.B1 was marked on the
side of the contesting third respondent. Ext.X1 disability certificate
was also marked.
5. On an appreciation of evidence, the Tribunal awarded a
compensation of Rs. 1,29,200/- . The claimant has now come up in
appeal challenging the quantum of compensation awarded by the
Tribunal.
6. Heard the counsel for the appellant and the counsel for
Insurance Company.
7. The accident is not disputed. The finding of the Tribunal
that the accident occurred due to the negligence on the part of the
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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.
8. The Tribunal awarded the compensation as follows :
Loss of earnings -Rs. 8,000/-
Medical expenses -Rs.38,000/-
Pain and suffering -Rs. 12,000/-
Disability -Rs. 61,200/-
Loss of amenities -Rs. 10,000/-
----------------
Rs.1,29,200/-
==========
9. The claimant sustained the following injuries as revealed
from Ext.A5 and Ext.A6 treatment certificate and Ext.P7 discharge
card :
lacerated wound 5 x 1 cm over (Rt) temporal region, skull deep,
lacerated wound 2 x 1 cm above (Rt) eyelid, fracture (Rt) orbital
roof,sutured wound(Rt) frontal pareatal area, cerebro spinal fluid
(CSF) Leak, frontal bone, fracture, multiple soft tissue injury E2 U3,
M5 cerebral oedma and contusion frontal lobe.
10. Ext.X1 disability certificate issued from the Medical
College Hospital,Thrissur shows that he has a permanent disability of
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17%. PW1 the wife and power of attorney holder of the claimant
would say that the claimant has persistent head ache and that there is
loss of vision to the right eye and he has fits two or more times every
day.
11. Counsel for the claimant disputed the quantum of
compensation awarded for the disability caused, for the pain and
suffering and for the loss of amenities and enjoyment of life. The
Tribunal took the monthly income of the claimant as Rs. 2000/- and
adopted a multiplier of 15 and the percentage of disability as 17% as
certified by the doctor in Ext.X1 and awarded a compensation of
Rs. 61,200/-. Counsel for the appellant argued that as a coolie the
claimant would have earned at least Rs. 100/- per day. We find some
force in the above contention. We feel that even as a coolie he would
have earned Rs. 2750/- per month and we fix the same as his monthly
income. Thus calculated for the disability caused, the claimant is
entitled to a compensation of Rs. 84,150/-. Thus on this count, he is
entitled to an additional compensation of Rs. 22,950/-.
12. Towards loss of earning for four months Rs. 8,000/- was
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awarded by the Tribunal. As we have taken the monthly income of the
claimant as Rs. 2750/- for four months he is entitled to Rs.11,000/-
towards loss of earnings. Thus on this count he is entitled to an
additional compensation of Rs. 3000/-
13. The Tribunal awarded a compensation of Rs. 12,000/- for
pain and suffering which appears to be very low. Having regard to
the injury sustained , we feel that a compensation of Rs. 25,000/- would
be reasonable on this count. Thus on this head, the claimant is entitled
to an additional compensation of Rs. 13000/-. For the loss of amenities
and enjoyment of life, Rs. 10,000/- was awarded by the Tribunal.
Taking into account the nature of the injury sustained, we feel that a
compensation of Rs. 20,000/- would be just and proper on this count.
Thus on this count, he is entitled to an additional compensation of
Rs. 10,000/-. The compensation awarded by the Tribunal for the
medical expenses is not questioned by the appellant.
14. In the result, the claimant is entitled to an additional
compensation of Rs. 48,950/-. He is entitled to interest at the rate of
7.5% per annum from the date of petition till realisation and
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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 with
notice to the claimant.
The Appeal is disposed of as found above.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
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