High Court Kerala High Court

Subramanian vs Unnian on 9 March, 2010

Kerala High Court
Subramanian vs Unnian on 9 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 161 of 2006()


1. SUBRAMANIAN, S/O. NARAYANAN,
                      ...  Petitioner

                        Vs



1. UNNIAN, RESIDING AT ODAVAKATTIL HOUSE,
                       ...       Respondent

2. SHANAVAS, S/O. KUNJUMUHAMMED,

3. THE UNITED INDIA INSURANCE COMPANY

                For Petitioner  :SRI.V.CHITAMBARESH

                For Respondent  : No Appearance

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

 Dated :09/03/2010

 O R D E R
            A.K.BASHEER & P.Q.BARKATH ALI, JJ.
            =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
                  M.A.C.A. No. 161 of 2006
            =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
           Dated this the 9th 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.2993 of 2000 of the

Motor Accidents Claims Tribunal, Thrissur challenges the

quantum of compensation awarded by the Tribunal for the

loss caused to him, on account of the injury sustained by

him in a motor accident.

2. The facts leading to this appeal in brief are these:-

On September 30, 2000 at about 7.45 p.m. the claimant was

cycling along the western side of Thrissur-Wadakkancherry

road. When he reached in front of Keltron a jeep bearing

registration No.KLM 9378 came from behind and knocked

him down. The claimant sustained very serious head injury.

At that time, he was aged 45 and was earning Rs.4,500/- per

month as a head load worker. According to the claimant,

the accident occurred due to a rash and negligent driving of

MACA 161/06 2

the offending vehicle by the second respondent. The first

respondent as the owner, second respondent as the driver

and third respondent as the insurer of the offending vehicle

are jointly and severely liable to pay the compensation to

the claimant. The claimant claimed a compensation of Rs.2

lakhs.

3. The first respondent, the R.C. owner of the

offending vehicle, filed a written statement, stating that on

April 1, 1999 he has sold the vehicle to one Ashraf. The

second respondent driver of the offending vehicle remained

absent and was set ex parte before the Tribunal. The third

respondent insurer of the offending vehicle filed a written

statement, admitting the policy.

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

A13 series were marked on the side of the claimant. On the

side of the contesting third respondent, copy of the policy

was marked as Ext.B1. On an appreciation of the evidence,

the Tribunal awarded a compensation of Rs.46,500/- with

interest at the rate of 6% p.a. from the date of petition till

MACA 161/06 3

realization and costs. The claimant has come up in appeal,

challenging the quantum of compensation awarded by the

Tribunal.

5. The accident is not disputed. The finding of the

Tribunal that the accident occurred due to the rash and

negligent driving of the offending jeep by 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?

6. The claimant sustained the following injuries:-

1) Head injury with cerebral oedema.

2) Extra dural heamotoma in the left occipital
area.

3) Haematoma 4 x 3 c.m. on vertigo of head.

4) Abrasion on right leg, right foot, left elbow,
right forearm, right scapular area and right
toe.

5) Lacerated wound on right foot.

Ext.A2 is the wound certificate. Ext.A6 is the discharge

summary, which shows that the claimant was an inpatient in

MACA 161/06 4

the hospital from 30-9-2000 to 9-10-2000. Ext.A7 is the

medical certificate. Ext.A8 series are certificates regarding

the treatment. Ext.A9 is the medical certificate showing the

treatment undergone by the claimant. Ext.A10 is the salary

certificate showing his salary as Rs.4,595/-. Ext.A12

disability certificate shows that he has 18% disability.

7. The Tribunal awarded a total compensation of

Rs.46,500/-. The break up of the compensation awarded is

as under:-

       Loss of earnings                  :    Rs.7,500/-
       Medical expenses                  :    Rs.11,000/-
       Pain and suffering                :    Rs.10,000/-
       Loss of amenities and enjoyment :      Rs.8,000/-
       of life.
       Permanent disability              :    Rs.10,000/-
                                              -----------------
                Total                    :    Rs.46,500/-
                                              =======

8. The learned counsel for the appellant has sought

enhancement of compensation mainly for the loss of

earnings, pain and suffering endured and for the disability

caused. There is force in the above contention. The claimant

was a head load worker.

MACA 161/06 5

9. The Tribunal awarded Rs.10,000/- for the pain and

and suffering endured by the claimant which we feel is very

low. Taking into consideration the nature of the injuries

sustained and the period of treatment the claimant has

undergone, we feel that a compensation of Rs.20,000/-

would be adequate on this count. Thus, on this head the

claimant is entitled to an additional compensation of

Rs.10,000/-.

10. For the disability caused, the Tribunal awarded a

compensation of Rs.10,000/-, which appears to be very low.

The claimant was aged 45 at the time of the accident and

used to earn Rs.4,500/- per month, as testified by him as

PW1. He produced Ext.A11, a certificate issued by the

General Manager of Malabar Building Products, Thrissur to

show that he used to earn Rs.4,595/- per month. A copy of

Ext.A11 is made available for our perusal by the learned

counsel for the appellant. The Tribunal took his monthly

income as Rs.2,500/- which appears to be low. In the light of

Ext.A11 certificate, we feel that his monthly income can be

MACA 161/06 6

reasonably fixed as Rs.3,000/-. In Ext.A12, the certificate of

disability, a copy of which is made available by the learned

counsel for the appellant for our perusal, it is certified that

the claimant has now occasional post traumatic headache

and giddiness and his disability is assessed at 8%. Having

regard to the disability noted by the doctor in Ext.A12, we

feel that the percentage of disability assessed by him

appears to be on the higher side. Taking into consideration

the disability noted in Ext.A12, we feel that an additional

amount of Rs.10,00/- would be reasonable on this count.

11. For the loss of earnings, the Tribunal awarded

Rs.7,500/- for three months at the rate of Rs.2,500/- per

month. We have fixed the monthly income of the claimant as

Rs.3,000/-. Therefore, for the loss of earnings the claimant

is entitled to Rs.9,000/- . Thus, on this count the claimant is

entitled to additional compensation of Rs.1,500/-.

Compensation awarded by the Tribunal under other heads

appear to be reasonable. Therefore, we are not disturbing

the same.

MACA 161/06 7

12. Thus, the claimant is entitled to an additional

compensation of Rs.21,500/- with 9% interest p.a. from the

date of petition till realization. The claimant is entitled to

proportionate costs. The third respondent, the Insurance

Company, shall deposit the amount 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 allowed as found above.

A.K.BASHEER, JUDGE.

P.Q.BARKATH ALI, JUDGE.

mn.