BY AD v. DEEPA GEORGE

BY ADVS. DEEPA GEORGE(K/001612/1999) ( by order ) SMT.DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2194 OF 2012 2 JUDGMENT The appellant was the claimant in O.P.(M.V.) No.90/2001 on the files of the Motor Accident Claims Tribunal, Thalassery. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 06.11.1999. The accident occurred when the motorcycle ridden by the petitioner was hit by a bus bearing Registration No.KL 13 E 4007, driven by the 1st respondent in a rash and negligent manner. The 2nd respondent was the owner of the bus, and it was insured with the 3rd respondent. According to the appellant, he was 30 years old at the time of the accident and was a fridge mechanic with a monthly income of Rs.7,500/-. The compensation was claimed in such circumstances.

2. The 3rd respondent alone contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, they denied negligence on the part of the bus driver, and they also disputed the quantum of compensation. The said claim petition was tried along with O.P. MACA NO. 2194 OF 2012 3 (M.V.) No.221/2001, which arose from the very same accident.

3. The evidence in this case consists of oral testimonies of PWs 1 and 2, and as documentary evidence, Ext.A1 to A17 were marked. The case sheet summoned from the City Hospital Mangalore was marked Ext.X1 and X2. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the 1st respondent in driving the bus, and being the insurer of the said bus, the 3rd respondent was held liable to pay compensation. The quantum of compensation was fixed as Rs.61,220/- and the said amount was directed to be deposited by the 3rd respondent with interest @ 7% per annum from the date of petition till realisation. This appeal is submitted in such circumstances by the appellant seeking enhancement of compensation.

4. Heard Sri.C.P. Peethambaran, learned counsel appearing for the appellant and Smt.Deepa George, learned counsel appearing for the Insurance Company.

5. The only dispute in this case relates to the quantum of compensation, particularly under the head of disability. It is MACA NO. 2194 OF 2012 4 the case of the appellant that, the monthly income considered by the Tribunal was very meager. According to him, even though an amount of Rs.7,500/- was claimed, the Tribunal took the same as Rs.2,000/- which was grossly inadequate.

6. On perusal of the records I find some force in the said contention. According to the appellant, he was a Refrigerator Mechanic with a monthly income of Rs.7,500/- and to substantiate the same, he got himself examined as PW1. Besides the same, he also produced Ext.A11, an attested copy of the certificate of the permanent registration number of Small Scale Industrial Unit by name M/s.Levlin Refrigeration Company, Keloth, Payyannur, which stands in the name of the appellant. The said certificate was issued by the General Manager District Industries Centre, Kannur. However, the said document would not indicate the monthly income. During the cross-examination of PW1, he stated that his monthly income was Rs.5,000/-, even though his claim in the claim petition was Rs.7,500/-. Thus, the case of the appellant lacks consistency in this regard. However, the monthly income of Rs.2,000/- appears to be on the lower MACA NO. 2194 OF 2012 5 side under any circumstances. The accident, in this case, occurred in the year 1999. Ext.A11 certificate would indicate that he was engaged in the repair of refrigerators. Therefore, certainly, he is a qualified person, and hence, a slightly higher monthly income than that is taken by the Tribunal is to be accepted. In the facts and circumstances of the case, by taking note of the date of the accident, age of the victim and other qualifications as discernible from Ext.A11, I deem it appropriate to fix the monthly income as Rs.3,500/-. The percentage of disability accepted by the Tribunal was 4% and I do not find any infirmity in the same. However, the multiplier applied by the Tribunal was 17, whereas the proper multiplier was 16, considering the fact that it has come out in evidence that he was aged 32 years as of the date of the accident as per the driving license produced as Ext.A12. Thus, while reassessing the compensation with the above-revised criteria, the compensation for disability would come to Rs.26,880/- [3500x12x16x4%]. The amount already awarded by the Tribunal is Rs.16,320/-; thus, the additional amount would come to Rs.10,560/-. MACA NO. 2194 OF 2012 6

7. Consequent to the revision of monthly income, the appellant would be entitled for enhancement of compensation under the head of loss of earnings as well. The Tribunal awarded compensation for three months under this head. However, considering the nature of injuries I deem it appropriate to grant an amount of Rs. 8,000/- as compensation for loss of earning for period of four months [(3500x4)-6000]

8. The amount awarded by the Tribunal towards pain and suffering was Rs.20,000/-. The injuries sustained by the appellant are extracted in paragraph 18 at page 12 of the award, which reads as follows: The injuries sustained to the petitioner noted in it as:-

5. Multiple abrasions over the forehead and maxilla. Swelling and deformity over the right thigh. Swelling and tenderness over the right knee joint. Sutured wound over the right leg middle 1/3rd. Punctured wound over the lateral aspect of right leg. Clinically haemothorasis over the right knee joint. Thus, it is evident that, the appellant sustained serious injuries and had undergone prolonged treatment. In such circumstances MACA NO. 2194 OF 2012 7 a further sum of Rs.10,000/- is awarded under the said head. Similarly, no amount is awarded towards loss of amenities. Considering the nature of the injuries and the consequences thereof, I deem it appropriate to grant a sum of Rs.15,000/- under the head of loss of amenities. Thus, the total compensation would come to Rs. 43,560/- (10,560 + 8,000 + 10,000 + 15,000) In the result this appeal is allowed. The award dated

06.04.2006 in O.P.(MV) No.90/2001 passed by the Motor Accident Claims Tribunal, Thalassery is hereby modified by granting an additional compensation of Rs. 43,560/- (Rupees forty three thousand five hundred and sixty only) and the said amount shall be deposited by the 3rd respondent Insurance Company with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as the delay of 2222 days in filing the appeal was condoned by this Court subject to the condition that the appellant would not be entitled to interest for the said period, the 3rd respondent MACA NO. 2194 OF 2012 8 shall be entitled to exclude the said period while computing the interest for the additional compensation. Sd/- ZIYAD RAHMAN A.A. JUDGE MACA NO. 2194 OF 2012 9 APPENDIX OF MACA NO. 2194 OF 2012 APPELLANT ANNEXURE ANNEXURE A ANNEXURE B TRUE COPY OF THE DOCKET DATED 11.01.2007 TRUE COPY OF THE LAST PAGE OF THE APPEAL MEMORANDUM DATED 11.01.2007