High Court Kerala High Court

Salim vs Chandran on 16 March, 2010

Kerala High Court
Salim vs Chandran on 16 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1678 of 2005()


1. SALIM, S/O. ABDUL KHADER,
                      ...  Petitioner

                        Vs



1. CHANDRAN, S/O. KANDAN,
                       ...       Respondent

2. C. PERUMAL, S/O. CHINNANNA GOUNTER

3. UNITED INDIA INSURANCE COMPANY LTD.,

                For Petitioner  :SRI.JOHNSON P.JOHN

                For Respondent  :SRI.P.JAYASANKAR

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

 Dated :16/03/2010

 O R D E R
            A.K.BASHEER & P.Q. BARKATH ALI, JJ.
               =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=
                 M.A.C.A. No. 1678 of 2005
               =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-=
           Dated this the 16th day of March, 2010

                          JUDGMENT

Barkath Ali, J:

In this appeal under section 173 of the Motor

Vehicles Act claimant in O.P.(MV) No.829 of 1998 of the

Motor Accidents Claims Tribunal, Palakkad challenges the

judgment and award of the Tribunal dated March 25, 2004

awarding a compensation of Rs.39,500/- 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 18 at the time of the accident.

He was employed as a Cleaner and was earning Rs.2,000/-

per month, according to him. On June 24, 1997 at about

1.30 p.m. the petitioner was travelling from Coimbatore to

Ernakulam in a tanker lorry bearing registration No.TN-37

F 6499 as a Cleaner and when the lorry reached at

Elamthuruthi, it capsized on the side of the road. As a

MACA 1678/2005 2

result, the claimant sustained very serious injuries.

According to the claimant, the accident occurred due to a

rash and negligent driving of the lorry by the first

respondent. The first respondent as the driver, second

respondent as the owner and third respondent as the

insurer of the lorry are jointly and severely liable to pay the

compensation to the claimant. The claimant claimed a

compensation of Rs.2 lakhs.

3. Respondents 1 and 2, driver and owner of the lorry

respectively, remained absent and were set ex parte by the

Tribunal. The third respondent Insurance Company field a

written statement, admitting the policy.

4. The claimant was examined as PW1 and Exts. A1 to

A10 were marked on the side of the claimant. No evidence

was adduced by the contesting third respondent. The

Tribunal, on an appreciation of the evidence, awarded a

compensation of Rs.39,500/- with interest at the rate of 6%

p.a. from the date of petition till realization and cost. The

claimant has come up in appeal challenging the quantum of

MACA 1678/2005 3

compensation awarded by the Tribunal,

5. Heard the learned counsel for the appellant and

learned counsel for the third respondent, 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.A5 wound certificate :-

“1) Lacerated wound 5 x 0.5 cm. on the right

knee with nerve injury.

2) Lacerated wound 3 x 0.5 cm. on right leg.

3) Lacerated wound 5 x 0.5 cm. on occipital

area.

4) Lacerated wound 1 x 0.5 cm. on dorsum of

right hand”

MACA 1678/2005 4

Ext.A7 is the disability certificate issued from the Aswini

Hospital, Thrissur, which shows that he has now the

following disabilities:-

“1) Present condition foot drop right.

2) Nerve has not been recovered.

3) Difficulty to walk due to foot drop.

The doctor assessed the disability at 20%. The Tribunal

assessed his monthly income as Rs.1,500/-, took disability at

6% and adopted a multiplier of 16. The Tribunal awarded a

total compensation of Rs.39,500/-. The break up of the

compensation awarded is as under:-

      Loss of earnings                   :    Rs.6,000/-
      Transport to hospital              :    Rs.1,500/-
      Extra-nourishment                  :    Rs.1,500/-
      Medical expenses                   :    Rs.5,000/-
      Pain and suffering                 :    Rs.8,000/-
      Compensation for permanent         :    Rs.17,500/-
      disability.
                                              -----------------
          Total                          :    Rs.39,500/-
                                              =======

8. The learned counsel for the appellant has sought

enhancement of compensation for disability caused, for loss

of amenities and enjoyment in life and for pain and suffering

MACA 1678/2005 5

endured. For awarding a compensation for disability

caused, the Tribunal took monthly income of Rs.1,500/-,

adopted multiplier of 16 and took disability caused as 6%.

On going through Ext.A8 the certificate of disability, we feel

that disability can be fixed at 10%. Monthly income as well

as the multiplier adopted by the Tribunal is not seriously

challenged. Thus, for the disability caused, the claimant is

entitled to a compensation of Rs.28,800/-. Thus, on this

count, the claimant is entitled to additional compensation of

Rs.11,300/-.

9. For pain and suffering the Tribunal awarded a

compensation of Rs.8,000/-, which, in our view, is very low.

Taking into consideration the nature of the injury sustained,

we feel that compensation of Rs.15,000/- would be

reasonable on this count. Thus, on this count the claimant is

entitled to additional compensation of Rs.7,000/-.

10. For the loss of amenities and enjoyment in life the

Tribunal did not award any amount. Taking into

consideration the nature of the injuries sustained and the

MACA 1678/2005 6

period of treatment the claimant has undergone, we feel

that a compensation of Rs.10,000/- would be reasonable on

this count. As regards the compensation awarded under

other heads, we find reasonable and adequate

compensation was awarded and therefore, we are not

disturbing the same.

11. Thus, the claimant is entitled to additional

compensation of Rs.28,300/-. He is entitled to interest @ 9%

per annum from the date of petition till realization with

proportionate costs. The third respondent Insurance

Company shall deposit the amount within two months from

the date of receipt of a copy of this judgment before the

Tribunal with notice to the claimant.

The appeal is disposed of as found above.

A.K.BASHEER,
JUDGE.

P.Q. BARKATH ALI,
JUDGE.

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