Kerala High Court
Appu Chettiar vs Jijeesh on 23 June, 2010
Bench: A.K.Basheer, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2275 of 2007()
1. APPU CHETTIAR, S/O.VELAYUDHAN CHETTIAR,
... Petitioner
Vs
1. JIJEESH, S/O. VASUDEVAN,
... Respondent
2. SHAMEER R., S/O. RAHIM,
3. UNITED INDIA INSURANCE COMPANY LIMITED,
For Petitioner :SRI.A.KRISHNAN
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :23/06/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. 2275 of 2007
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Dated: JUNE 23, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 508/2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha, challenges the judgment and award of the Tribunal, dated, November 4, 2006 awarding a compensation of Rs.4,15,000/- for the loss caused to the claimant 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 50 at the time of the accident and was earning Rs.12000/- per month by conducting a shop dealing in cycles and cycle spare parts, according to the claimant. On November 24, 2001 the claimant was riding his Kynetic Honda scooter along Kochankulangara - Muhamma road. When he reached at Kythakattubhagom, a goods autorickshaw bearing registration No.KL- 04 J/8667 driven by the 2nd respondent came at a high speed and dashed against the scooter. The claimant sustained serious injuries. According to the him the accident occurred due to the rash and negligent driving of the goods autorickshaw by the 2nd respondent. The 1st respondent as the owner, the 2nd respondent as M.A.C.A. 2275 of 2007 2 the driver and the 3rd respondent as the insurer of the offending goods autorickshaw are jointly and severally liable to pay compensation to the claimant.
3. Respondents 1 and 2, the owner and the driver of the offending autorickshaw remained absent and were set ex parte by the Tribunal. The 3rd respondent, insurer of the offending autorickshaw, filed a written statement admitting the policy and further contended that there was also negligence on the part of the claimant.
4. The claimant was examined as PW.1 and Exts.A1 to A28 series were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting 3rd respondent. 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.4,15,000/- with interest at 7.5% per annum from the date of petition till realisation. 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 M.A.C.A. 2275 of 2007 3 the accident occurred due to the negligence on the part of the 2nd 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.A7, copy of the wound certificate, issued from the Medical College Hospital, Alappuzha and Exts.A8 and A8(a) certificates issued from the Medical Trust Hospital, Ernakulam:-
"Head injury caused brain concussion, blood clotting in the brain and forehead skull fracture, left hemiparesis Grade -I, right parietal subdural haemotoma contusion on right parietal region, head injury caused paralysis of complete left side of he body, haemorrhagic contusion in right parietal region, compound fracture of both bones of right leg, posterior dislocation of right hip, lacerated wound skull deep forehead with skull fracture, lacerated wound right lower lip, loss of teeth, mobile teeth and two fractured mobile teeth upper mandible, multiple abrasions on the face, right knee, left lumbar region, left elbow and deep multiple wounds on the right leg and sutured. "
8. The Tribunal awarded a total compensation of Rs.4,15,000/-. The break up of the compensation awarded is as under:-
loss of earnings - Rs.60,000/-
cost of medicine and treatment charges - 1,40,000/-
M.A.C.A. 2275 of 2007
4
transportation - 9,700/-
bystander's expenses - 6,000/-
extra nourishment - Rs.1,000/-
damage to clothing - 300/-
pain and suffering - 20,000/-
loss of amenities - 10,000/-
permanent disability and loss of
earning power - 1,65,000/-
future treatment - 3,000/-
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Total - Rs.4,15,000/-
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9. The Counsel for the appellant/claimant sought enhancement of the compensation for the disability caused and on other heads. In Ext.A15 certificate of disability issued by the doctor, the neurological disability is assessed as 17%. The claimant has occasional rage reaction and right hemiparesis (Grade 4 power), ambulant on level without support, climbing stairs needs assistance and risk of post traumatic epilepsy, occasional head ache and dizziness. In Ext.A16 the orthopedic disability is assessed as 13%. The Tribunal took the disability as 25% and adopted a multiplier of 11 and took his monthly income as Rs.5000/- and awarded Rs.1,65,000/- for the disability caused. The monthly income of the claimant taken by the M.A.C.A. 2275 of 2007 5 Tribunal and the percentage of disability as 25% appears to be reasonable. As the deceased was aged only 50, the proper multiplier to be adopted is 13. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.1,95,000/-. Thus on this count the claimant is entitled to an additional compensation of Rs.30,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same.
10. Thus the claimant is entitled to an additional compensation of Rs.30,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. 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 mt/-