IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 716 of 2008()
1. NARAYANAN, S/O.RAMAN,
... Petitioner
Vs
1. SURENDRA KAMMATH.K., V/923,
... Respondent
2. JOY, S/O.PORINJU, PARASSERY VEETTIL,
3. UNITED INDIA INSURANCE COMPANY LTD.,
4. THE ORIENTAL INSURANCE COMPANY LTD.,
5. ADDL. R5:
For Petitioner :SRI.K.A.SEBASTIAN
For Respondent :SRI.P.JAYASANKAR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :11/06/2010
O R D E R
A.K.BAHSEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No. 716 of 2008
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Dated this the 11th day of June, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles
Act, the claimant in O.P. (MV) No.1004 of 2000 of Motor
Accidents Claims Tribunal, Ernakulam challenges the
judgment and award of the Tribunal dated June 25, 2007
awarding a compensation of Rs.1,66,044/- for the loss
caused to him on account of the injuries sustained by him in
a motor accident.
2. The facts leading to this appeal, in brief, are
these:- The claimant was aged 48 at the time of the
accident and used to earn Rs.5,000/- per month as a Mason.
On December 10, 1999 at 6 p.m. the claimant was riding
his motor cycle bearing registration No.KL-7/C-5766, along
with one Asokan as a pillion rider, along the National
Highway. When they reached near Desom near Alwaye, a
car bearing registration No.KL-8/C-8605, driven by the
MACA 716/2008 2
second respondent, came at a high speed and dashed
against the motor cycle of the claimant. The claimant as
well as the pillion rider sustained serious injuries.
According to the claimant, the accident occurred due to the
rash and negligent driving of the offending car by the
second respondent. First respondent as the owner, second
respondent as the diver and third respondent as the insurer
of the offending car are jointly and severally liable to pay
compensation to the claimant. Fourth respondent who is the
insurer of the motor cycle was subsequently impleaded.
Fifth respondent is the registered owner of the car.
3. Respondents 1 and 2, the owner and driver of the
offending car remained absent and were set ex parte by the
Tribunal. The third respondent, the insurer of the offending
ca filed a written statement, admitting the policy and
further contended that the registered owner of the car is
another person. Additional fourth respondent has filed a
written statement, admitting the policy and contended that
the accident occurred due to negligence of the second
MACA 716/2008 3
respondent. The additional fifth respondent filed a written
statement, admitting the ownership of the car.
4. Exts.A1 to A10 were marked on the side of the
claimant before the Tribunal. No evidence was adduced by
the respondents. The Tribunal, on an appreciation of
evidence, awarded a compensation of Rs.1,66,044/- with
interest at 7.5% p.a. from the date of petition till realization.
The claimant has now come up in appeal challenging the
quantum of compensation awarded by the Tribunal.
5. Heard learned counsel for the appellant and
learned counsel for respondents 3 and 4.
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 claimant sustained the following injuries as
revealed from Ext.A8 copy of the wound certificate issued
MACA 716/2008 4
from the hospital, X-ray and C.T.scan:-
1) Multiple abrasion on the right side of
forehead.
2) Lacerated wound right eyebrow.
3) Abrasions on the right ear, right shoulder,
dorsum of left hand, right hand and right
knee.
4) Lacerated wound on the right leg at lower
third and right knee.
5) Black eye – right.
6) Fracture of both bones of right leg and right
patella.
7) Fractures of frontal bone, cribriform plate,
roof and lateral wall of right orbit.
There was thin extradural haematoma on right temporal
convixity and bleed with right lateral ventricle. Ext.A7 series
are discharge cards issued from the hospital. Ext.A10 is the
certificate of disability issued by the Medical Board, which
shows that the claimant has 39% permanent physical
disability and 28% orthopaedic disability and 11% neuro-
logic disability.
8. The Tribunal awarded a total compensation of
MACA 716/2008 5
Rs.1,66,044/-. Break up of the amount awarded is as
under :-
Medical expenses : Rs. 57,164/-
Transportation expense : Rs. 2,000/-
and damage to cloth.
Attendant expenses : Rs. 4,000/-
Extra-nourishment : Rs. 3,000/-
Shock, pain and sufferings : Rs. 20,000/-
Loss of permanent disability : Rs. 74,880/-
Loss of amenities and : Rs. 5,000/-
convenience.
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Total : Rs.1,66,044/-
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9. The learned counsel for appellant sought
enhancement of compensation towards the disability caused
and for loss of amenities and enjoyment in life.
10. The Tribunal took the monthly income of the
claimant as Rs.2,000/-, adopted a multiplier of 8, as the
claimant was aged 48 at the time of the accident, and took
the percentage of disability as 39%, as shown in Ext.A10,
and awarded Rs.74,880/- for the disability caused.
According to the claimant, he was a Mason and used to earn
Rs.5,000/- per month. Taking into consideration this aspect,
we feel that his monthly income can reasonably be
MACA 716/2008 6
estimated at Rs.2,500/-. The percentage of disability taken
by the Tribunal as 39% and multiplier adopted by the
Tribunal as 8 are not seriously challenged. Thus, for the
disability caused, the claimant is entitled to a compensation
of Rs.93,600/- (Rs.2,500/- x 12 x 8 x 39%). Thus, on this
count, the claimant is entitled to an additional
compensation of Rs.18,720/-.
11. The Tribunal awarded a compensation of
Rs.5,000/- for loss of amenities and for the inconvenience
caused, which appears to be very low. Having regard to the
nature of the injuries sustained, we feel that a
compensation of Rs.10,000/- would be reasonable on this
count.
12. There is another aspect in this case. The Tribunal
did not award any amount for loss of earnings. The nature
of the injuries sustained by the claimant shows that he must
have been laid up for four months. As we have fixed monthly
income of the claimant as Rs.2,500/-, the claimant is entitled
to a compensation of Rs.10,000/- for loss of earnings for
MACA 716/2008 7
four months. 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 found entitled to an
additional compensation of Rs.33,720/-. He is entitled to
interest @ 7.5 % per annum from the date of petition till
realization and proportionate cost. The third 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 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.
mn.