Kerala High Court
Usha Rani @ Usha vs Mg.Director on 30 March, 2011
Bench: A.K.Basheer, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 300 of 2009()
1. USHA RANI @ USHA, W/O.SHANMUGHAN,
... Petitioner
Vs
1. MG.DIRECTOR, K.S.R.T.C.,
... Respondent
2. NASAR, S/O.JALAVUDEEN, KARIPPEVELIYIL,
3. NATIONAL INSURANCE CO.LTD,DIVISIONAL
For Petitioner :SRI.GEORGE KURUVILLA(ALAPPUZHA)
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :30/03/2011
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. No. 300 OF 2009
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DATED THIS THE 30TH DAY OF MARCH, 2011
JUDGMENT
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Barkath Ali, J.
Appellant is the claimant in O.P.(MV)No. 542/2002 on the file of Additional Motor Accidents Claims Tribunal, Alappuzha. In this appeal, she challenges the judgment and award of the Tribunal dated March 15, 2008 awarding a compensation of ` 58,250/- to her for the loss caused to her on account of the injuries sustained in a motor accident.
2. The accident happened on September 29,2001 at about 6.45 a.m. While the claimant was travelling in the K.S.R.T.C bus bearing registration No. KL-15/3213 and when it reached near S.B. College, Changanassery, while giving side to another vehicle, the bus fell into a gutter and driver lost control over the bus and dashed against the building on the side of the road and overturned. The claimant sustained the following injuries in the accident:
" 1. Lacerated wound on left elbow 10x10cm.
2. Loosening of two teeth from lower jaw.
3. Comminuted fracture of lateral condyle of left humerus with ulnar nerve injury with bone loss as well as skin loss "
M.A.C.A. No. 300 OF 2009 2
3. Alleging negligence against the 2nd respondent, the driver of the bus, the claimant filed the O.P. before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of ` 2,50,000/-.
4. The 1st respondent is the Managing Director of the K.S.R.T.C to whom the bus belonged. The 2nd respondent is the then driver of the said bus. They filed a joint written statement before the Tribunal admitting the accident, but denied the liability. The 3rd respondent, insurer of the said bus remained absent before the Tribunal.
5. This O.P. was jointly tried along with another O.P. filed by a person who was injured in the same accident and a common award was passed by the Tribunal.
6. Exts. A1 to A14 were marked on the side of the claimants. No evidence was adduced by the respondents. The disability certificate issued by the Medical Board was marked as Ext. X1. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 2nd respondent and awarded a compensation of Rs. 58,250/- with interest at the rate of 6% per annum from the date of petition till M.A.C.A. No. 300 OF 2009 3 realization and proportionate costs. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal.
7. Heard the counsel for the claimant and the counsel for the Insurance Company.
8. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd respondent 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 ?
9. The Tribunal awarded a total compensation of ` 58,250/-. The break up of the compensation amount awarded is as under:
Transportation : ` 1500/-
Damage to clothing : ` 250/-
Extra nourishment : ` 1000/-
Bystanders expenses : ` 1000/-
Treatment expenses : ` 5000/-
Loss of earning : ` 4500/-(@ `1500/- p.m. for
three months)
M.A.C.A. No. 300 OF 2009
4
Pain and suffering : `25000/-
Loss of amenities in : `20000/-
life and enjoyment
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Total : `58,250/-
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10. Counsel for the claimant sought enhancement of the compensation for loss of amenities and enjoyment of life and on other heads. He pointed out that no compensation was awarded for the disability caused to the claimant.
11. Ext.X1, the certificate issued by the Medical Board shows that claimant has suffered a disability of 14%. Therefore, we are of the view that the claimant is entitled to compensation for the disability caused. The Tribunal took the monthly income of the claimant as ` 1500/-. She was a fish seller, aged 35 at the time of accident. Therefore, we feel that her monthly income can be reasonably fixed at ` 2,000/-. As she was aged 35 at the time of accident, the proper multiplier that can be adopted in this case is 16. On going through Ext.X1, certificate of disability, we feel that her permanent disability can be fixed at 10%. Thus, calculated, for the disability caused, the claimant is entitled to a compensation of ` 38,400/- (`2000x12x16x10%). As regards the M.A.C.A. No. 300 OF 2009 5 compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same.
In the result, the appellant/claimant is found entitled to an additional compensation of ` 38,400/-. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization on the compensation already awarded and also for the enhanced compensation. The 3rd 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 PKK