Allowed

Mohammed Aslam v. Thachan Kunjan Moidu

Kerala HC1 Jun 2010MACA/346/2003

Case brief

AI extract

What is this about?

The High Court allowed an appeal challenging the compensation award in a motor accident case. The court enhanced the compensation for disability, pain and suffering, and loss of amenities, modifying the Tribunal's award based on revised income and disability calculations.

What did the court decide?

Appeal allowed; compensation enhanced by an additional Rs. 1,23,400/-; interest at 9% granted; insurer directed to deposit amount.

Mohammed Aslam Vs Thachan Kunjan Moidu — Motor Accident Claims | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932

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MACA.No. 346 of 2003()

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---------------------OPMV.277/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM ....................

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APPELLANT/PETITIONER IN THE OP(MV)NO.277/2000:

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--------------------------------------------------------------------------------

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MOHAMMED ASLAM, S/O. HAMZA, RESIDING AT KOLANTHODI HOUSE, POST M.E.S.COLLEGE, MANNARKKAD, PALAKKAD DISTRICT.

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BY ADV. SRI.SANTHEEP ANKARATH

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RESPONDENT(S): RESPONDENTS IN OP(MV) NO.277/2000:

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---------------------------------------------------------------------------------------

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1. THACHAN KUNJAN MOITHU, S/O. KUNCHI MOIDEEN MULLAH, M.E.S.COLLEGE (POST),KUNDHIPUZHA, MANNARKKAD, PALAKKAD DISTRICT.

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*** 2. SHAHUL HAMEED, S/O. MOIDU, THANKUNNU HOUSE, KUNDHIPUZHA, MANARKKAD, PALAKKAD DISTRICT.( D E L E T E D)**

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*THE 2ND REPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DTD. 31/05/2010 IN CMP.NO.1963/04.

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3. UNITED INDIA INSURANCE COMPANY LIMITED, MANNARKKAD.

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R3 BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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A.K.BASHEER & P.Q. BARKATH ALI, JJ.

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==================

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M.A.C.A. No. 346 of 2003

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==================

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Dated this the 1^st day of June, 2010

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JUDGMENT

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Barkath Ali, J.

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In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.277 of 2000 of the Motor Accidents Claims Tribunal, Ottappalam challenges the judgment and award of the Tribunal dated December 16, 2002 awarding a compensation of Rs.1,85,000/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident.

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The facts leading to this appeal, in brief, are these:- On February 16, 1998 at about 1.10 in the night while the claimant was walking along the side of the road at Kodakkad, he was knocked down by an auto-rickshaw bearing registration No.KL-9/E 1135. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending auto-rickshaw by the second respondent.

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MACA 346/2003 2

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First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending auto-rickshaw are jointly and severely liable to pay the compensation to the claimants.

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Respondents 1 and 2, owner and driver of the offending auto-rickshaw, remained absent before the Tribunal. The third respondent, insurer of the offending auto-rickshaw, filed written statement, admitting the policy.

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PWs.1 and 2 were examined and Exts. A1 to A7 were

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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 the evidence, found that the accident occurred due to the negligence on the part of the second respondent and awarded a compensation of Rs.1,85,000/- . The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal.

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Heard the learned counsel for the claimant and learned counsel for the Insurance Company.

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MACA 346/2003

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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.

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The claimant sustained the following injuries, as revealed from Ext.A2 copy of the discharge summary issued from the hospital:-

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1. Fracture palvis.

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1. Fracture pubic ramis, diastasis.

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Fracture inferior pubic rami.

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Disruption of flow of urine and ureteral injuries.

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Ext.A3 is the discharge summary issued from the Aswini Hosptial, Thrissur. PW2 doctor who issued the disability certificate deposed that the claimant has now errection failure and his disability can be assessed at 50%.

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The Tribunal awarded a total compensation of Rs.1,85,000/-. Break up of the compensation awarded is as

MACA 346/2003

under:-

Loss of earning : Rs. 7,000/Transportation : Rs. 2,000/Extra nourishment : Rs. 1,300/Treatment expenses : Rs. 41,700/Pain and suffering : Rs. 20,000/Hospital expenses : Rs. 7,000/Loss of amenities : Rs. 10,000/and enjoyment of life. Disability caused : Rs. 96,000/-----------------Total : Rs.1,85,000/=======

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The learned counsel for the claimant sought enhancement of the compensation for the disability caused, for the pain and suffering endured and for the loss of amenities and enjoyment in life. The Tribunal took the monthly income of the claimant as Rs.2,000/-, assessed the disability at 25% and awarded a compensation of Rs.96,000/- for the disability caused. The claimant was aged 19 at the time of the accident. There is no evidence to show his income. Even an unskilled labourer can earn Rs.100/- per day as observed by the Apex Court in Laxmi Devi and others V. Mohammad Tabbar and another, 2008 ACJ 1488. Therefore, we feel that his monthly income can reasonably be fixed at Rs.3,000/-. The proper

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MACA 346/2003

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multiplier that can be adopted in this case is 18, as provided in the Second Schedule to the Motor Vehicles Act. Taking into consideration the nature of the injuries sustained, we feel that percentage of disability of the claimant can be taken as 30%. Thus, calculated for the loss of dependency the claimant is entitled to a compensation of Rs. 1,94,400/- (Rs.3,000/- x 12 x 18 x 30/100). Thus, on this count, the claimant is entitled to an additional compensation of Rs.98,400/-.

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For the pain and suffering endured the Tribunal awarded a compensation of Rs.20,000/-, which appears to be very low. Having regard to the nature of the injuries sustained and the period of treatment the claimant had undergone, we are of the view that a compensation of Rs.30,000/- would be reasonable on this count. Thus, on this count, the claimant is entitled to an additional compensation of Rs.10,000/-.

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For the loss of amenities and enjoyment in life, Rs.10,000/- was awarded by the Tribunal, which appears to be inadequate. Having regard to the nature of the injuries sustained, we feel that a compensation of Rs.25,000/- would

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MACA 346/2003 6

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be reasonable on this count. Therefore, the claimant is entitled to an additional compensation of Rs.15,000/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same.

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In the result, the claimant is entitled to an additional compensation of Rs.1,23,400/-. He is entitled to interest @ 9% from the date of petition till realization and proportionate costs. The third respondent being the insurer of the offending auto-rickshaw shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent.

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The appeal is disposed of as found above.

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A.K.BASHEER, JUDGE.

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P.Q. BARKATH ALI, JUDGE.

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MACA 346/2003 7

Mohammed Aslam v. Thachan Kunjan Moidu

Case brief

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Mohammed Aslam v. Thachan Kunjan Moidu

Case brief

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