IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 344 of 2006(A)
1. MATHEW GEORGE, S/O.GEORGE,
... Petitioner
Vs
1. NALOLIKKAL SIBI @ JOSEPH, S/O.JOSEPH,
... Respondent
2. M.G.BINDU, MUDAPLAKKAL HOUSE,
3. ORIENTAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.H.BADARUDDIN
For Respondent :SRI.M.JACOB MURICKAN
The Hon'ble MR. Justice A.K.BASHEER
Dated :17/05/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No.344 OF 2006
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Dated this the 17th 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.2/2000 of Motor Accidents Claims Tribunal,
Thalassery challenges the judgment and award of the Tribunal dated
August 5, 2005 awarding a compensation of Rs. 77,750/- 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 was an agriculturist aged 28 earning Rs. 4,000/- per
month, according to him. On April 21, 1999 at about 9.30 p.m., the
claimant was travelling in an auto rickshaw bearing Reg.No.KL13/D
3488. When he reached at a place called Marottichodu, due to the rash
and negligent driving of the auto rickshaw by first respondent, it over
turned on the road. The claimant sustained serious injuries. According
to the claimant, accident occurred due to the rash and negligent driving
of the offending auto rickshaw by first respondent. First respondent as
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the driver, second respondent as the owner and third respondent as the
insurer of the offending auto rickshaw are jointly and severally liable to
pay compensation to the claimant. Claimant claimed a compensation
of Rs. 3 lakhs.
3. Respondents 1 and 2, the driver and owner of the offending
auto rickshaw remained absent and were set ex parte by the Tribunal.
The third respondent the insurer of the offending auto rickshaw filed a
written statement admitting the policy.
4. Claimant was examined as PW1 and Exts.A1 to A7 series
were marked on the side of the claimant before the Tribunal. No
evidence was adduced by the contesting third respondent. The
Tribunal on an appreciation of evidence found that the accident
occurred due to the rash and negligent driving of the offending auto
rickshaw by first respondent and awarded a compensation of
Rs.77,750/- with interest @ 9% per annum and cost. The claimant has
now come up in appeal challenging the quantum of compensation
awarded by the Tribunal.
5. Heard the counsel for the appellant/claimant and the
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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 first
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. :
1. Compound fracture and dislocation of left
ankle.
2. Contused and lacerated wound 3 x 1 cm.
bone deep on the medial aspect of right leg.
3. Contused abrasion of 3 cm. x 1 cm. left side
of forehead above the eye braw.
4. Lacerated abrasion 2 cm. x 1 cm. on the
right shoulder.
5. Abrasion of 1 = cm. long on the lateral
aspect of right thigh.
8. Ext.A4 series are the two discharge cards issued from
Kasturba Medical College Hospital, Manipal which shows that
claimant has suffered fracture /dislocation of left ankle.
9. The Tribunal awarded a total compensation of Rs.77,750/-.
The break up of the compensation awarded is as under :
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Loss of earning - Rs. 6,000/-
Medical expense including bills - Rs.29,600/-
Transportation expense
including ambulance bill - Rs. 6,000/-
Bystanders expense - Rs. 2,000/-
Extra nourishment - Rs. 1,500/-
Loss of earning capacity - Rs. 32,640/-
( 2000 x 12 x 17 x 8%) -----------------
Total - Rs.77,740/-
Rounded off to - Rs.77,750/-
=========
10. Counsel for the appellant sought enhancement of
compensation for the disability caused. Ext.A5, the disability
certificate issued by Dr.Bhaskaranand Kumar, Kasturba Medical
College, Manipal shows that the claimant has the following
disabilities :
1. Post traumatic ankylosis of left ankle joint
with no planter fixation of dorsiflexion
movements.
2. Post traumatic osteoarthrosis of left ankle
joint with 10 degree valgus deformity.
3. Shortening of left lower limb – 1 cm.
11. His percentage of disability was assessed at 30%. The
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Tribunal took the monthly income of the claimant as Rs.2,000/- and
took the percentage of disability at 8% and adopted a multiplier of 17
and awarded Rs. 32,640/- for the disability caused. Taking into
consideration the disabilities mentioned in Ext.A5, we feel that the
percentage of disability suffered by the claimant can be fixed at 12%.
Claimant as PW1 also testified that he is an agriculturist . Therefore,
we feel that his monthly income can be reasonably fixed at Rs. 2,500/-.
The multiplier adopted by the Tribunal as 17 is not seriously
challenged. Thus calculated for the disability caused, the claimant is
entitled to a compensation of Rs. 61,200/- ( 12 % x 2500 x 12 x 17).
Thus on this count, the claimant is entitled to an additional
compensation of Rs.28,560/-. As regards the compensation awarded
under other heads, we find the same to be reasonable and therefore are
not disturbing the same.
12. In the result, the claimant is found entitled to an additional
compensation of Rs. 28,560/-. 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
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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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