IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 MACA.No. 937 of 2004 ---------------------- OPMV.2053/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: ----------------------------------- SHAJU JOSEPH, S/O. JOSEPH, KALLATTU HOUSE, THALIPARAMBA P.O., KANNUR DIST. BY ADV. SRI.BLAZE K.JOSE RESPONDENT(S): RESPONDENTS: --------------------------- 1. DILEEP KUMAR T., S/O. THANKAPPAN, THATTUPURA HOUSE, BOC ROAD, PERUMBAVOOR P.O.. 2. MAJEED T.K., S/O. KUNHUMARAKKAR, THARAYIL HOUSE, ETTUMANA P.O., URAKAM VILLAGE, THRISSUR DISTRICT. 3. THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, PASSANCHERRY BUILDING, THRISSUR-680 001. 4. K.KARUNAKARAN, S/O. GOPALAN, KANDOTH HOUSE, PARASSINIKADAVU P.O., THALIPARAMBA. 5. RAJI K.ALIAS, KIZHAKKUMPURATH HOUSE, PIRAMADAM P.O., MOOVATTUPUZHA. 6. THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, 391-A, TENKASI ROAD, RAJAPALAYAM P.O. ADV. SMT.P.A.REZIYA FOR R6 SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 937 OF 2004 ------------------------------------------------------ Dated: JULY 21, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in OP(MV) 2053/1997 on the file of the Motor Accidents Claims Tribunal, Thalassery. He sustained the following injuries in a motor accident which occurred on January 31, 1997 at about 4 p.m. At Koothattukulam: “a lacerated wound 3 x 3 cms over occipital region, another lacerated wound 2 x 2 cms below the chin, another lacerated wound below the left eye, abrasion with complaints of pain over right chest, fracture of upper third of the right humerus with fracture of lateral condyle hamerus and also fracture of right 6th and 7th ribs on the right side.” 2. While he was travelling in a jeep bearing registration No.KL- 13/B 1306 driven by the 5th respondent in the OP, it collided head on with a mini lorry bearing registration No.KL-7/N 1987 driven by the 2nd respondent. He filed the OP under sec.166 of the Motor Vehicles Act claiming a compensation of Rs.1,77,500/- against respondents 1 to 3, M.A.C.A. 937 OF 2004 2 owner, driver and insurer of the mini lorry, alleging negligence against the 2nd respondent. Respondents 4 to 6, owner, driver and insurer of the jeep were also made parties in the OP. 3. The OP was mainly contested by respondents 4 and 6, insurers of the vehicles involved in the accident. They admitted the policy of the respective vehicles, but attributed negligence on the part of the driver of the other vehicle. PWs.1 and 2 were examined and Exts.A1 to A8 were marked on the side of the claimant. Ext.X1, the case sheet of the claimant kept in the Medical Trust Hospital was also marked as Ext.X1. On the side of the claimant PW.2 was also examined to prove his employment and salary certificate Ext.A7. On an appreciation of evidence the Tribunal found that the accident occurred due to negligence of the 2nd respondent and awarded a compensation of Rs.76,300/- with interest at the rate of 9% per annum from the date of petition till realisation against respondents 1 to 3. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 4. Heard counsel for the appellant/claimant and the counsel for the insurance companies. 5. The break up of the compensation awarded is as under: hospital expenses Rs.5100/- loss of income 9000/- M.A.C.A. 937 OF 2004 3 transportation 5000/- medical expenses 35200/- pain and suffering 17000/- loss of amenities 5000/- 6. The Tribunal took the monthly income of the claimant as Rs.1500/- and awarded Rs.9000/- for loss of earnings for six months. The claimant produced his salary certificate Ext.A7 showing that as a Waiter in a hotel he used to earn Rs.3000/- per month. Taking into account this aspect we feel that his monthly income can be reasonably fixed at Rs.2000/-. Therefore towards loss of earnings he is entitled to get Rs.12000/-. Thus on this count he is entitled to an additional compensation of Rs.3000/-. 7. Counsel for the appellant pointed out that no compensation was awarded for the alleged disability caused and that the nature of the injuries sustained by the claimant shows that he must have suffered some disability. But the claimant did not produce any certificate of disability to show that he has suffered any disability due to the injury sustained. Therefore the Tribunal is perfectly justified in not awarding any compensation for the disability caused. For the discomfort and inconvenience caused and for loss of amenities and enjoyment of life, only Rs.5000/- was awarded by the Tribunal which appears to be quite inadequate taking into account the nature of the M.A.C.A. 937 OF 2004 4 injuries sustained by the claimant. Having regard to the fact that the claimant sustained about four fractures and his cerebral concussion and injury to eye, we feel that a further compensation of Rs.30,000/- would be reasonable for the temporary disability caused and for the discomfort and inconvenience caused and for loss of amenities and enjoyment of life. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 8. Thus the claimant is entitled to an additional compensation of Rs.33,000/-. He is entitled to interest at the rate of 9% per annum from the date of petition till realisation with proportionate costs. The 3rd respondent, the insurer of the offending mini lorry, 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. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-