IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 323 of 2004()
1. SMT.FATHIMA AMANULLA, W/O. AMANULLA,
... Petitioner
Vs
1. V.M.SULAIMAN S/O. MYTHEEN,
... Respondent
2. P.K.ISMAIL, S/O. KUTTY,
3. UNITED INDIA INSURANCE CO.LTD.,
4. N.K.NAZEER, NANANTHAN HOUSE,
5. C.A.ALI S/O. ABOOBACKER,
6. ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.P.CHANDY JOSEPH
For Respondent :SRI.P.JACOB MATHEW
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :16/06/2010
O R D E R
A.K.BAHSEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No. 323 of 2004
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Dated this the 16th 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.1926/1994 of Motor
Accidents Claims Tribunal, Ernakulam challenges the
judgment and award of the Tribunal dated July 17, 2001
awarding a compensation of Rs.2,30,750/- for the loss
caused to the claimant on account of the injuries sustained
by her in a motor accident.
2. The facts leading to this appeal, in brief, are
these:- The claimant was a lady, aged 43 at the time of the
accident and used to earn Rs.4,000/- per month as a
teacher, according to the claimant. On April 3, 1994 at 4
p.m. the claimant was travelling in a car bearing
registration No. KL-7C-4775 along Vytila – Aroor road. At
that time a lorry bearing registration No. KRV 4662, driven
by the second respondent, came at a high speed from the
MACA 323/2004 2
opposite direction dashed against the car in which the claimant
was travelling. The claimant sustained serious injuries.
According to her, the accident occurred due to the rash and
negligent driving of the offending lorry by the second
respondent. First respondent as the owner, second respondent
as the driver and third respondent as the insurer of the
offending lorry are jointly and severally liable to pay
compensation to the claimant. The claimant claimed a
compensation of Rs. 10 lakhs
3. Respondents 1, 2, 4 and 5 remained absent and were
set ex parte by the Tribunal. The third respondent, the insurer
of the offending lorry, filed a written statement, admitting the
policy and further contended that the accident occurred due to
the negligence of the driver of the car. The sixth respondent,
insurer of the car in which the claimant was travelling, filed
written statement admitting the policy and further contended
that the accident occurred due to the negligence on the part of
the driver of the lorry.
4. PWs.1 to 5 were examined and and Exts.A1 to A14
MACA 323/2004 3
were marked on the side of the claimant before the Tribunal.
Ext.B1 was marked on the side of the respondents. The Tribunal,
on an appreciation of evidence, awarded a compensation of
Rs.2,30,750/-. The claimant has now come up in appeal
challenging the quantum of compensation awarded by the
Tribunal.
5. Heard the counsel for the claimant and the counsel for
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 second respondent, driver of the offending lorry, 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 Exts.A5 discharge card and A14 wound
certificate:-
“1) Lacerated wound rt. Upper eyelid 5 x 2 x 2 cm.
2) Incised wound rt. cheek 5 x 2 cm. Vertically.
MACA 323/2004 4
3) Multiple small incised wounds over the posterior
aspect of the rt. Elbow.
4) Multiple abrasions rt. upper arm rt. forearm,
chin.
5) Swelling and deformity rt. Thigh.
6) Patient is unconscious Rt. pupil dialated and
fixed.
7) Severe head injury.
8) Brain stem injury and diffused brain injury.”
C.T. Scan showed pin-point haemorrhage in the brain stem and
another pin-point haemorrhage frontal region with severe brain
ox oedema with squashing of cistern.She was laid up in the
hospital for 111 days.
8. The Tribunal awarded a total compensation of
Rs.2,30,750/-. Break up of the compensation awarded is as
under :-
Transportation expense : Rs. 1,500/-
Bystander's expense : Rs. 11,000/-
Extra-nourishment : Rs. 5,000/-
Damage to clothing : Rs. 500/-
Treatment expenses : Rs. 87,705
Pain and sufferings : Rs. 35,000/-
Neurological disability : Rs. 25,000/-
MACA 323/2004 5
Physical disability : Rs. 10,000/-
Disability caused : Rs. 35,000/-
difficulties, discomfort and : Rs. 20,000/-
other inconveniences
in the enjoyment other
normal life.
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Total Rs.230,705/-
Rounded to : Rs.2,30,750/-
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9. The learned counsel for appellant sought enhancement
of compensation for the disability caused, loss of amenities and
enjoyment in life and pain and suffering endured. He has also
pointed out that no compensation was awarded for future
treatment expenses.
10. The Tribunal awarded Rs.25,000/- for neurological
disability, Rs.10,000/- for physical disability and Rs.35,000/- for
disability caused to the right hand. The claimant was aged 43
and was earning more than Rs.4,000/-, as revealed from Ext.A13
employment certificate. Therefore, we feel that her monthly
income can reasonably be fixed at Rs.3,000/-. Proper multiplier
that can be taken is 14.
11. Ext.A3 is the treatment certificate and Ext. A8 is the
MACA 323/2004 6
certificate of disability issued by PW3 doctor. It shows that the
claimant sustained head injury, brain stem injury and fracture of
femur. He testified that her memory was not normal and that
she was not able to manage financial matters and giving tuition
to children and she has lost capacity to take decisions.
Therefore, the disability assessed by him at 15% appears to be
reasonable. That being so, for the neurological disability caused,
the claimant is entitled to a compensation of Rs. 75,600/-
(Rs.3,000/- x 12 x 14 x 15%). Thus, on this count the claimant is
entitled to an additional compensation of Rs.50,600/-.
12. Ext.A9 is the certificate of physical disability, which
showed that the claimant was having shortening of right lower
limb by 3 c.ms., wasting of right leg by 1 c.m., right thigh by 2
cms. She was limping on the right side and the patient was
using surgical foot wear for correction of shortening of height.
The doctor assessed her physical disability as 12%, which
appears to be reasonable. Thus, for the physical disability
caused, the claimant is entitled to a compensation of
Rs.60,480/-. (Rs.3,000/- x 12 x 14 x 12%). Thus, on this count,
MACA 323/2004 7
the claimant is entitled to an additional compensation of
Rs.50,480/-.
13. Ext.A4 is the disability certificate issued by PW5
doctor, regarding the disability caused to her right eye. PW4
testified and also certified in Et.A4 thus:-
“On opthalmological evaluation the patient had
alternate convergent squint and hemianopia. The
patient was reviewed on 11.06.’98 and she still had
alternate divergent squint with right homonymous
hemianopia. Because of this hemianopia the patient is
highly incapacitated to do her routine work and she
may be considered as having disability to the extent
of 30 percent due to her opthalmic problems.”
The percentage of disability assessed by PW3 was 30% appears
to be reasonable. Thus, for the ophthalmological disability
caused to her on account of the injuries sustained to her right
eye, the claimant is entitled to a compensation of Rs.1,51,200/-
(Rs.3,000/- x 12 x 14 x 30%). Thus, on this count, the claimant is
entitled to an additional compensation of Rs.1,16,200/-.
MACA 323/2004 8
14. The Tribunal awarded a compensation of R.35,000/- for
pain and suffering. Taking into account the nature of the injuries
sustained by the claimant, we feel that a compensation of
Rs.50,000/- would be reasonable for pain and suffering. Thus, on
this count, the claimant is entitled to an additional compensation
of Rs.15,000/-.
15. For the loss of amenities and enjoyment in life,
Rs.20,000/- was awarded by the Tribunal. Taking into
consideration the serious nature of the injuries sustained by the
claimant, we feel that Rs.30,000/- would be reasonable on this
count. Therefore, on this count, the claimant is entitled to an
additional compensation of Rs.10,000/-.
16. There is another aspect in this case. No compensation
was awarded for future treatment expenses. The nature of the
injuries sustained by the claimant and the disabilities caused to
her clearly shows that she has to spent considerable amount for
future treatment. Therefore, we feel that a compensation of
Rs.50,000/- would be reasonable for future treatment expenses.
As regards the compensation awarded under other heads, we
MACA 323/2004 9
find the same to be reasonable and therefore, are not disturbing
the same.
17. In the result, the claimant is found entitled to an
additional compensation of Rs.2,92,280/-. She is entitled to
interest @ 9% per annum from the date of petition till realization
and proportionate cost. The third respondent being the insurer
of the offending lorry 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.
MACA 323/2004 10
A.K.BAHSEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No. 323 of 2004
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JUDGMENT
16th day of June, 2010