IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 920 of 2008()
1. SHIJU @ BABU, S/O.CHENTHAMARA, FORMERLY
... Petitioner
Vs
1. K.AMUTHA, W/O.S.P.KUMARASWAMY,
... Respondent
2. REVICHANDRA RAJA, S/O.R.DURAIRAJ,
3. NEW INDIA ASSURANCE CO. LTD.,
For Petitioner :SRI.LIJU. M.P
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :25/03/2010
O R D E R
A.K.BAHSEER & P.Q.BARKATH ALI, JJ.
=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
M.A.C.A. No. 920 of 2008
=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
Dated this the 25th day of March, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act,
the claimant in O.P.(MV)No.1081/2004 of Motor Accidents
Claims Tribunal, Ottapalam challenges the judgment and
award of the Tribunal dated July 18, 2007 awarding a
compensation of Rs. 3,01,860/- with interest @ 7% per
annum from the date of petition till realisation 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 aged 19 at the time of the accident
and was earning Rs. 3,000/- per month as a Welder. On July
14, 2004 at about 3.30 p.m., claimant was pillion riding on
the motor cycle bearing Reg.No.KL9F 3905 from
Coimbatore to Palakkad through NH 47. The motor cycle
was ridden by deceased Shaneesh. When they reached
MACA 920/2008 2
near Chullimada bridge, Walayar, Palakkad, a mini lorry
bearing Reg.No.TN 33AB 9568 driven by the second
respondent came at a high speed from the opposite side and
dashed against the motor cycle. The rider of the motor
cycle succumbed to the injuries sustained in the accident.
The claimant sustained serious injuries and as a result of
which his leg was amputated. According to the claimant,
accident occurred due to the rash and negligent driving of
the offending mini lorry by second respondent. First
respondent as the owner, second respondent as the driver
and third respondent as the insurer of the offending vehicle
are jointly and severally liable to pay compensation to the
claimant.
3. The legal heirs of deceased Shaneesh filed O.P.(MV)
No.1105/2004 before the Tribunal, which was jointly tried
along with this O.P. by the Tribunal and a common award
was passed.
4. PWs. 1 and 2 were examined and Exts.A1 to A17
were marked on the side of the claimant before the
MACA 920/2008 3
Tribunal. Copy of the policy was marked as Ext.B1. The
Tribunal on an appreciation of evidence awarded a
compensation of Rs. 3,01,860/-. 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
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 second respondent, driver of the
offending vehicle, 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 series, the discharge certificates
issued from Elite Mission Hospital, Thrissur:-
1) Compound fracture both bone Rt. leg.
2) Lower 3rd with vascular injury.
MACA 920/2008 4
3) Deep lacerated wound present over lower 3rd
Rt. leg.
4) Multiple abrasion over Rt.elbow, post
operatively distal vessels blocked with
emboli.
8. On 21-07-2004 below knee amputation was done.
Ext.A6 is the copy of discharge summary issued from the
same hospital which shows that he was admitted on
16/07/2004 and was discharged on 3-8-2004. Ext.A7 is the
disability certificate issued by the Orthopaedic Surgeon
attached to Elite Mission Hospital, which shows that he has
a permanent disability of 70%. Ext.A8 is the photograph
showing that amputation of leg was done. Ext.A9 is the
salary certificate showing that he was getting a monthly
salary of Rs. 3,000/- per month as a Welder.
9. The Tribunal awarded a total compensation of
Rs. 3,01,860/-. The break up of the compensation awarded
is as under :
Disability - Rs. 2,30,400/-
MACA 920/2008 5
Treatment expenses - Rs. 40,110/-
Bystanders expenses - Rs. 2,850/-
Transportation expenses - Rs. 5,000/-
Extra nourishment - Rs. 3,000/-
Damage to clothes - Rs. 500/-
Pain and suffering - Rs. 20,000/-
---------------------
Total - Rs. 3,01,860/-
==========
10. The learned counsel for the claimant sought
enhancement of the compensation for the disability caused.
He pointed out that no compensation was awarded for the
loss of amenities and enjoyment of life and loss of marriage
prospects.
11. The Tribunal awarded Rs. 2,30,400/- for the
disability caused taking the monthly income of the claimant
as Rs. 2,400/- and the percentage of disability as 50% and
adopting a multiplier of 16, taking into consideration the
age of the claimant as 19. Ext.A9, the salary certificate
shows that he was working as a Welder and was earning Rs.
3,000/- per month. He also testified to that fact as PW1.
Therefore, we feel that his monthly income can reasonably
be estimated at Rs. 3,000/- per month. The Tribunal took
MACA 920/2008 6
his percentage of disability as 50% which appears to be
reasonable, on going through Ext.A7, the certificate of
disability. The multiplier adopted by the Tribunal as 16 is
not seriously challenged. Thus calculated for the disability
caused, the claimant is entitled to a compensation of Rs. 2,
88,000/-. Thus, on this count, the claimant is entitled to an
additional compensation of Rs. 57,600/-.
12. The Tribunal did not award any amount towards
loss of amenities and enjoyment of life and loss of marriage
prospects. Taking into consideration the nature of the
injury sustained and the fact that his right leg was
amputated, we feel that the a compensation of
Rs. 15,000/- for loss of amenities and enjoyment of life and
another Rs.15,000/- for loss of marriage prospects would be
reasonable. 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.87,600/-. He is entitled to
MACA 920/2008 7
interest @ 9% from the date of petition till realization and
proportionate cost. The third respondent being the insurer
of the offending vehicle, 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 as above.
The appeal is disposed of as found above.
A.K. BASHEER,
JUDGE.
P.Q.BARKATH ALI,
JUDGE.
mn.