IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 964 of 2004()
1. VINOD, S/O.GOPALAKRISHNAN,
... Petitioner
Vs
1. HAJI.N.K.ABDEEN,
... Respondent
2. MUHAMMAED KUNJU, S/O.KUTTY,
3. THE UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.N.RAGHURAJ
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :28/06/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.964 OF 2004
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Dated this the 28th 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.1584/1996 of Motor Accidents Claims
Tribunal, Alappuzha challenges the judgment and award of the
Tribunal dated June 3, 2003 awarding a compensation of Rs. 50,000/-
for the loss caused to him on account of the injuries 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 and was
employed as a Gold Smith in Asha Jwellery, Alappuzha. On March
25, 1996 at about 7.30 a.m. near Aiswarya Auditorium, Mullakkal,
Alappuzha, claimant was cycling along the side of the road. Claimant
in O.P.(MV)No.1583/1996 was pillion riding on the cycle. At that
time, a Matador Van bearing Reg.No.K.B.F-486 driven by the second
respondent came at a high speed from the opposite side and knocked
them down. Claimant as well as the pillion rider sustained serious
MACA.No.964/2004 2
injuries. According to the claimant, accident occurred due to the rash
and negligent riding of the offending Matador Van by second
respondent. First respondent as the owner, second respondent as the
driver and third respondent as the insurer of the offending Matador
Van are jointly and severally liable to pay compensation to the
claimant. Claimant claimed a compensation of Rs. 1,50,000/-.
3. Respondents 1 and 2, the owner and driver of the offending
vehicle remained absent and were set ex parte by the Tribunal. The
third respondent the insurer of the offending van filed a written
statement admitting the policy, but contended that actually the
offending vehicle is a Maruthi car and not the Matador van as alleged
by the claimant.
4. This O.P. was jointly tried along with O.P.(MV)
No.1583/1996 filed by the pillion rider of the bicycle and a common
award was passed. Pws 1 and 2 were examined and Exts.A1 to A17
were marked on the side of the claimant before the Tribunal. No
evidence was adduced by the contesting third respondent. The
Tribunal on an appreciation of evidence found that the accident
occurred due to the rash and negligent driving of the offending van by
second respondent and awarded a compensation of Rs. 50,000/- with
MACA.No.964/2004 3
interest @ 6% per annum from the date of petition till realisation and
proportionate cost. 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 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, copy of the wound certificate issued from Medical
College Hospital, Alappuzha.
Abrasion ( L) foot ( L) knee
Lacerated wound chin 3 x 1 cm.
Fracture ( R) femur ( L) tibia.
8. Ext.A6 is the discharge card issued from the hospital.
Open reduction and ‘K’ nail fixation was done. Ext.A12, the certificate
of disability, shows that the claimant has a permanent disability of
18%.
MACA.No.964/2004 4
9. The Tribunal awarded a total compensation of Rs.50,000/-.
The break up of the compensation awarded is as under :
Loss of earning - Rs. 9,000/-
Treatment expenses - Rs. 4,000/-
Pain and suffering - Rs. 10,000/-
Disability - Rs. 21,000/-
Loss of earning power - Rs. 6,000/-
10. Counsel for the claimant sought enhancement of
compensation for the disability caused and for loss of earning.
11. The Tribunal took the monthly income of the claimant as
Rs.1500/-. Taking into consideration the fact that claimant was a Gold
Smith, we feel that his monthly income can be reasonably fixed at
Rs. 2,000/-.
12. The Tribunal awarded Rs.9,000/- for loss of earning for six
months @ Rs. 1,500/- per month. As we have fixed the monthly
income of the claimant as Rs. 2,000/-, the claimant is entitled to a
compensation for Rs. 12,000/- towards loss of earning. Thus on this
count, the claimant is entitled to an additional compensation of
Rs.3,000/-. As regards the compensation awarded under other heads,
we find the same to be reasonable and therefore are not disturbing the
same.
13. There is another aspect in this case. The Tribunal awarded
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interest only @ 6% per annum which is very low. The claimant is
entitled to interest @ 7.5% per annum from the date of petition till
realisation for the compensation already awarded and also for the
enhanced compensation.
14. In the result, the claimant is entitled to an additional
compensation of Rs. 3,000/-. He is entitled to interest @ 7.5% per
annum from the date of petition till realisation for the compensation
already awarded and also for the enhanced compensation. He is also
entitled to proportionate cost. The third respondent being the insurer of
the offending vehicle shall deposit the amount before the Tribunal
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 disposed of as found above.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.No.964/2004 6