IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 423 of 2009()
1. SURENDRAN, S/O.VELU, 35 YEARS,
... Petitioner
Vs
1. SURESH BABU, POLLIKKATHODI MELMURI
... Respondent
2. SATHYAN, S.I,UNNIKKARI, PULIYANJALIL
3. ORIENTAL INSURANCE CO.LTD., BRANCH
4. K.ABDUL AZEEZ, S/O.MOHAMMED, KOOLANCHERY
5. UNITED INDIA INSURANCE CO.LTD., BRANCH
For Petitioner :SRI.K.M.JAMALUDHEEN
For Respondent :SRI.K.M.SATHYANATHA MENON
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :24/11/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No. 423 of 2009
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Dated this the 24th day of November, 2010
JUDGMENT
Barkath Ali, J.
Appellant is the claimant in O.P.(MV) No.2822 of
2003 on the file of the Principal Motor Accidents Claims
Tribunal, Kozhikode. In this appeal he challenges the
judgment and award of the Tribunal dated March 6, 2008
awarding a compensation of Rs.95,100/- for the loss caused
to him on account of the injuries sustained by him in a
motor accident .
2. The accident happened on July 3, 2003 at about
6.30 p.m. while the claimant was travelling in a bus bearing
registration No. KL-10/H 4725 it dashed against a jeep
bearing registration No. KL-10/B 9124 at Thaleppara. The
claimant sustained the following injuries in the accident :-
1) Compound fracture on lower end of right
humerous.
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2) Compound fracture on the upper end of ulna
and radius right.
3) Grade II open side swipe injury.
4) Lacerated wound over dorsal aspect of right
elbow 6 x 1 x 1 cm bone exposed deformity
on right elbow.
Alleging negligence against 2nd respondent, driver of the
offending bus, the claimant filed the O.P. before the
Tribunal under section 166 of the Motor Vehicles Act
claiming a compensation of Rs.2 lakhs.
3. Respondents 1 to 3 are the owner, driver and
insurer of the offending bus and respondents 4 and 5 are
the owner and insurer of the jeep involved in the accident.
Respondents 1, 2 and 4 remained absent before the
Tribunal. The 5th respondent, insurer of the jeep, filed
written statement contending that the accident was due to
the negligence of the 2nd respondent driver of the bus. The
3rd respondent insurer of the bus did not file written
statement. PW1 was examined and Exts.A1 to A3 and C1
were marked on the side of the claimant. No evidence was
MACA 423/2009 3
adduced by the respondents. On an appreciation of the
evidence, the Tribunal found that the accident happened
due to negligence of the 2nd respondent driver of the bus
and awarded a compensation of Rs.95,100/- with interest at
7.5 % p.a. from the date of petition till realization against
respondents 1 to 3. The claimant has come up in appeal
challenging the quantum of compensation.
4. Heard learned counsel for the appellant/claimant
and learned counsel for respondents 1 and 5.
5. The finding of the Tribunal that the accident was
due to the negligence of the 2nd respondent, driver of the
bus, and that the claimant sustained the above mentioned
injuries in the accident are 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 Tribunal awarded a total compensation of
Rs.95,100/-. Break up of the compensation amount awarded
is as under:-
MACA 423/2009 4
Medical Bills : Rs. 7,600/-
Incidental charges : Rs. 2,500/-
Pain and suffering : Rs. 8,000/-
Disability : Rs.72,000/-
Loss of income : Rs. 4,500/-
Transportation : Rs. 500/-
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Total : Rs.95,100
7. Learned counsel for the claimant sought
enhancement of the compensation for the disability caused
and on other heads. It is submitted that no compensation
was awarded for the loss of amenities and enjoyment in life.
8. The Tribunal took the monthly income of the
claimant as Rs.1,500/-, took the percentage of disability as
16%, as certified by the Medical Board in Ext.C1, adopted
multiplier of 16 as he was aged 36 and awarded Rs.72,000/-
for the disability caused. Taking into consideration the fact
that deceased was a driver, as testified by him as PW1
before the Tribunal and as evidenced by his driving licence,
we feel that his monthly income can be reasonably be
estimated as Rs.2,500/-, which comes to Rs.30,000/- per
annum. Percentage of disability as 25% as certified by the
MACA 423/2009 5
Medical Board and 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.1,20,000/- (Rs.30,000/- x 16 x 25%). Thus, on this
count the claimant is entitled to an additional compensation
of Rs.48,000/-.
9. Tribunal awarded Rs.4,500/- for loss of income for
three months at the rate of Rs.1,500/- per month. As we
have fixed his monthly income as Rs.2,500/-, he is entitled to
a compensation of Rs.7,500/- on this count.
10. The claimant sustained the following disabilities,
as revealed from Ext.C1 certificate issued by the Medical
Board:-
1) Deformed right upper arm due to side-swipe
injury sequela.
2) Ankylosis of right elbow with loss of
movements possible at 140 percentage ..
In the light of the above disabilities caused to the claimant,
we feel that a compensation of Rs.10,000/- for the loss of
amenities and enjoyment in life would be reasonable. As
MACA 423/2009 6
regards the compensation awarded under other heads, we
find the same to be reasonable and therefore are not
disturbing the same.
11. In the result, the claimant is found entitled to an
additional compensation of Rs.61,000/- with interest @
7.5% from the date of petition till realization. The 3rd
respondent/Insurance Company is directed to 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.