IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 MACA.No. 559 of 2008() ---------------------- OPMV.544/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE NEW INDIA ASSURANCE COMPANY LTD. REP. BY THE DY. MANAGER, REGIONAL OFFICE M.G.ROAD, KOCHI-11. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2 --------------------------------------------- 1. C.K.SUNIL CHEKAVAR, S/O.NANU CHAKKUNKULANGARA HOUSE, P.O.MUTTANNOR VIA. MANGALAM, TIRUR TALUK, MALAPPURAM. 2. P.P.SHAFI, S/O.ENU @ KUNHU PULIAPURATH HOUSE, P.O. MUTTANNOR EDAKKANAND, PURATHOOR, TIRUR. 3. SIRAJ N., S/O.MOHAMMED MULAKKAL HOUSE, P.O.THIRUNAVAYA, MALAPPURAM DIST. ADV. SRI.C.V.MANUVILSAN FOR R2 SRI.A.KRISHNAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 559 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9th day of March, 2010 JUDGMENT Barkathali, J. In this appeal under section 173 of the Motor Vehicles Act the Insurance Company, who is third respondent in O.P.(MV) No.544 of 2004 of the Motor Accidents Claims Tribunal, Tirur, challenges the award of the Tribunal dated July 3, 2007 in awarding a compensation of Rs.6,00,900/- to the claimant for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts in brief are these:- The first respondent/claimant was conducting a MACA 559/08 2 hardware shop and earning about Rs.7,500/- per month, according to him. On March 1, 2004 the claimant was pillion riding on a motor cycle KL-10 A09674 from Mangalam to Tirur. His friend Balakrishnan was riding the motor cycle. At about 5.15 p.m. when they reached near K.G. Padi, a lorry bearing registration No.KL-10 c-1769 came from opposite side, dashed against the motor cycle. The claimant sustained serious injuries in the accident. The accident occurred due to the rash and negligent driving of the offending vehicle by the first respondent. The first respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending vehicle are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.8,00,000/-. 3. Respondents 1 and 2 driver and owner of the offending vehicle respectively remained absent and were set ex parte before the Tribunal. The third respondent insurer of the offending vehicle filed a written statement, MACA 559/08 3 admitting the policy and further contending that the accident occurred due to the negligence on the part of the rider of the motor cycle. 4. The claimant’s brother was examined as PW1 and Exts. A1 to 4 were marked on the side of the claimant before the Tribunal. No evidence was adduced on the side of the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence on the part of the 1st respondent driver of the lorry and awarded a compensation of Rs.6,00,900/- with interest at the rate of 6% p.a. from the date of petition till realization and costs. The third respondent Insurance Company has come up in appeal, challenging the quantum of compensation as well as finding of the Tribunal regarding the negligence. 5. Heard the learned counsel for the appellant Insurance Company and and the learned counsel for the claimant and second respondent, the owner of the offending vehicle. MACA 559/08 4 6. Learned counsel for the appellant Insurance Company submits that as the accident is a head-on-collision between the offending lorry and the motor cycle, the Tribunal ought to have held that there was also negligence on the part of the rider of the motor cycle. 7. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred solely due to the negligence on the part of the first respondent driver of the lorry can be sustained? 2) Whether the compensation awarded by the Tribunal is excessive? 8. PW1 the brother of the claimant, though not an eye witness to the incident, has testified that the accident occurred due to the negligence on the part of the first respondent driver of the lorry. His version on this aspect is probable, as the police has charged the case against the first respondent, which is proved by Ext.A1 copy of the FIR MACA 559/08 5 and Ext.A7 charge the criminal case. The appellant/third respondent has not chosen to adduce any evidence before the lower court to show that there was also negligence on the part of the rider of the motor cycle. The appellant has not chosen to examine the driver of the lorry to prove that there was no negligence on his part. 9. The claimant examined PW2 rider of the motor cycle. He has categorically state that the accident occurred due to the negligence on the part of the first respondent driver of the lorry. His evidence was not shaken in cross examination. It was not even suggested during cross examination that there was any negligence on his part. For all these reasons we confirm the finding of the Tribunal that the accidence occurred due to the negligence on the part of the first respondent driver of the offending lorry and that there was no negligence on the part of PW2 rider of the motor cycle. 10. The next question for consideration is whether the compensation awarded is excessive or not. The Learned MACA 559/08 6 counsel for the appellant Insurance company submits that Rs.5,000/- was taken by the Tribunal as the monthly income of the injured, which is on higher side. It is also submitted that the disability assessed by the Tribunal as 15% is also on the higher side. 11. The Tribunal awarded a total compensation of Rs.6,00,900/-. The break up of the compensation awarded is as under:- Transport to hospital : Rs.11,400/- Damage to clothing : Rs.500/- Expenses of bystander : Rs.15,000/- Medical bills : Rs.2,45,000/- Extra nourishment : Rs.15,000/- Loss of income : Rs.30,000/- Pain and suffering : Rs.40,000/- Permanent disability : Rs.1,44,000/- Loss of vision : Rs.1,00,000/- ------------------ Rs.6,00,900/- ======== The claimant sustained very serious injuries. Ext.A6is the discharge summary issued from the Moulana Hospital, Perinthalmanna. Exts.A10, 12 and 13 are discharge cards. Ext.A18 is the certificate of disability issued by the Medical MACA 559/08 7 Board, which would show that the claimant has suffered bladder incontinence and occasional loss of memory and that he has sustained permanent locomotor disability of 15%. The lower court has in its award has detailed the injuries sustained and treatment undergone by the claimant. Therefore, we are not extracting the same in this judgment. Taking into consideration the fact that the claimant was conducting a hardware shop, the Tribunal is perfectly justified in taking his monthly income as Rs.5,000/. The percentage of the disability assessed by the Medical Board appears reasonable. The Tribunal adopted a multiplier of 16, considering the age of the claimant, which, in our view, is just and proper. For all these reasons, we hold that the Tribunal is perfectly justified in awarding compensation of Rs.1,44,000/- for the permanent disability. 12. Taking into account the serious nature of the injuries sustained by the claimant, we are of the view that the amount awarded under other heads also is reasonable and not excessive. MACA 559/08 8 13. Therefore, the appeal fails and it is accordingly dismissed. Parties have to bear their own costs. Sd/- A.K.BASHEER, JUDGE. Sd/- P.Q. BARKATH ALI, JUDGE. mn /true copy/ P.S. to Judge.