Kerala High Court
Augustine Joseph vs John K.K on 23 March, 2010
Bench: A.K.Basheer, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1799 of 2005()
1. AUGUSTINE JOSEPH, AGED 32 YEARS,
... Petitioner
Vs
1. JOHN K.K., S/O. KORU,
... Respondent
2. NEW INDIA ASSURANCE COMPANY, KALPETTA.
For Petitioner :SRI.N.J.ANTONY
For Respondent :SRI.P.G.GANAPPAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :23/03/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No. 1799 of 2005
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Dated this the 23rd 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.693 of 2000 of Motor Accidents Claims Tribunal, Wayanad, Kalpetta challenges the award of the Tribunal dated October 29, 2004, awarding a compensation of Rs.39,000/- 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 appellant/claimant was aged 32 at the time of the accident and used to earn Rs.7,500/- p.m. from the grocery business, according to him. On November 24, 1998 at about 11.30 a.m. the claimant was pillion riding on a motor cycle bearing registration No.KL 12/5837 from Perikalloor to Pulpally, which was ridden by the first respondent. When he reached at Pattanikoop, the motor cycle dashed against a goat on the road and the motor cycle capsized on the road. MACA 1799/2005 2
The claimant sustained serious injuries. According to him, the accident occurred due to the rash and negligent riding of the offending motor cycle by the first respondent. First respondent as the owner-cum-rider and second respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.2 lakhs.
3. First respondent, the owner-cum-rider of the offending motor cycle filed a written statement, contending that there was no negligence on his part. Second respondent, insurer of the offending motor cycle, filed a written statement admitting the policy.
4. The claimant was examined as PW1 and Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. No evidence was adduced on the side of the respondents.
5. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence on the part of the first respondent and awarded a compensation of MACA 1799/2005 3 Rs.39,000/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal.
6. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company.
7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first 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 ?
8. The claimant sustained the following injuries:-
1) Fracture of right metatarsal 2nd, 3rd , 4th and 5th.
2) Injury to right knee.
3) Injury to right leg and
4) Minor injuries and pain on several parts of the body.
Ext.A5 is the wound certificate issued from the hospital. MACA 1799/2005 4 Ext.A6 is the discharge card issued from Priya Hospital, S. Bathery.
9. The Tribunal awarded a total compensation of Rs.39,000/-. The break up of the compensation awarded is as under :
Loss of earning : Rs.3,000/-
(2 months at the rate of
Rs.1,500/- p.m.)
Transportation expense : Rs.500/-
Extra nourishment : Rs.2,000/-
Bystanders expense : Rs.2,000/-
Medical expense : Rs.6,500/-
Pain and sufferings : Rs.5,000/-
For the disability caused : Rs.20,000/-
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Total : Rs.39,000/-
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10. Ext.A2 is the disability certificate issued by the doctor, a copy of which is made available to us for perusal. The doctor has certified that the claimant has now the following disabilities:-
"The fracture was united but in a catesel deviation, which is due to disruption, intezosseous ligaments which binds bones together. Push of phase during walking, running is painfullly restricted. Won't be able to stand on fore-foot alone. Cann't engage in sports activities and restriction of motor driving also". MACA 1799/2005 5
11. Taking into consideration the nature of the disability suffered by the claimant, we feel that his disability can be reasonably fixed at 10%. The Tribunal took the monthly income of the claimant as Rs.1,500/- , which appears to be very low. The claimant was aged 32 at the time of the accident and, according to him, he was doing grocery business and was earing Rs.7,500/-. Though no document is produced to prove the income, we feel that his monthly income can reasonably be fixed at Rs.2,000/-. The multiplier adopted by the Tribunal as 16 is not seriously disputed. Thus, for the disability caused the claimant is entitled to a compensation of Rs.38,400/- (Rs.2,000/- x 12 x 16 x10/100). Thus, the claimant is entitled to additional amount of Rs.18,400/- on this count. Regarding compensation granted under other heads , we find the same to be just and proper and therefore, we are not disturbing the same.
12. There is another aspect in this case. The Tribunal awarded interest only at the rate of 6% p.a, which appears MACA 1799/2005 6 to be very low. The claimant is entitled to interest at the rate of 7% p.a. from the date of petition till realization.
13. In the result, the claimant is entitled to additional compensation of Rs.18,400/-. He is entitled to interest @ 7% per annum from the date of petition till realization and proportionate cost. The second 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.
mn.