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 16TH JUNE 2010 / 26TH JYAISTHA 1932 MACA.No. 1294 of 2008() ----------------------- OPMV.278/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): ----------------------- BIJU T.C., S/O.PRASANNAN,AGED 29 YEARS, THEKKE CHIRAKKAL HOUSE, THIRKKOTTOOR AMSOM DESOM. BY ADV. SMT.K.V.RASHMI RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. T.K.CHANDRAN, S/O.SHANKARAN, THAYYIL KUNIYIL HOUSE, MUTTUNGAL P.O, 673 016, VADAKARA (OWNER OF KL 11.G/3688 JEEP). 2. SHAJI, S/O.KANARAN, VAVARU MEETHAL HOUSE, ONCHIYAM, VADAKARA, PIN-673 308, D.L.NO.1992/89/DB BADGE NO.1209/DB, (DRIVER OF KL 11G/3688 JEEP). 3. THE NATIONAL INSURANCE COMPANY LTD, BRANCH OFFICE P.B.NO.6 KEYI'S SHOPPING COMPLEX, NARANGAPURAM, POLICY NO.571102/2002/6302014. (INSURER OF KL 11G/3688 JEEP). R3 BY ADV. SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2010 ALONG WITH MACA NO. 925 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos. 1294/2008 and 925/2010 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 16th day of June, 2010 JUDGMENT Barkath Ali, J. These appeals under section 173 of the Motor Vehicles Act arise out of the same judgment and award in O.P.(MV) No. 278 of 2003 dated April 17, 2007 on the file of the Motor Accidents Claims Tribunal, Vadakara. 2. M.A.C.A. No.1294 of 2008 is filed by the claimant and M.A.C.A.No.925 of 2010 is filed by the third respondent Insurance Company. 3. On September 15, 2002 while the claimant was talking to his friend near Thikkedi Petrol pump, he was knocked down by a jeep bearing registration No. KL/11 G 3688, driven by the second respondent. His friend was also injured in the accident. According to the claimant, the accident occurred due to the rash and negligent driving of the offending jeep by the second respondent. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending MACA 1294/2008 2 jeep are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.3 lakhs. 4. The first respondent, owner of the offending jeep, filed a written statement admitting the accident but contended that there was also negligence on the part of the claimant. The second respondent remained absent before the Tribunal. The third respondent, insurer of the offending jeep, filed written statement, admitting the policy. 5. This O.P. was jointly tried along with O.P. (MV) No.277 of 2003 filed by another injured person in the accident and a common award was passed. 6. PWs.1 to 3 were examined and Exts.A1 to A20 were marked on the side of the claimant. Exts.B1 to B4 were marked on the side of the contesting third respondent. Exts.X1 and X2 were also marked. The Tribunal, on an appreciation of the evidence, awarded a total compensation of Rs.33,398/- with interest at the rate of 6% p.a. from the date of petition till realization and a cost of Rs.1,000/-. The MACA 1294/2008 3 claimant has filed M.A.C.A. No.1294/2008, claiming enhancement of the compensation awarded. The Insurance Company, third respondent, has filed M.A.C.A. No.925 of 2010, contending that there was no negligence on the part of the second respondent, driver of the offending jeep, as he was acquitted in the criminal case. 7. Heard the counsel for the claimant and the counsel for the Insurance Company. 8. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence on the part of the second respondent, driver of the offending jeep, can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 9. The claimant sustained the following injuries, as revealed from Ext.A2 discharge summary, Ext.A3 discharge card and Ext.X1 disability certificate issued by the Medical Board:- MACA 1294/2008 4 “1) Lacerated wound on the left thigh. 2) Fracture of left elbow. 3) Dislocation of left knee. 4) Fracture of left femur and ulna.” 10. The Tribunal awarded a total compensation of Rs.33,398/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs.15,000/ Hospital expenses : Rs. 5,200/- Transportation : Rs. 480/- Mental shock and inconvenience : Rs. 3,000/- Loss of income : Rs. 4,500/- Extra nourishment : Rs. 5,218/- ------------------ Total : Rs. 33,398/- ======= 11. The learned counsel for the claimant has mainly sought enhancement of compensation awarded for pain and suffering endured. He has pointed out that no compensation was awarded for loss of amenities and enjoyment in life. 12. Taking into consideration the nature of the injuries sustained, we feel that an additional compensation of Rs.15,000/- for the loss of amenities and enjoyment in life MACA 1294/2008 5 would be reasonable. 13. The Tribunal awarded Rs.4,500/- towards loss of earnings for three months at the rate of Rs.1,500/- per month. As the claimant was aged only 24 at the time of the accident, we feel that his income can reasonably be estimated at Rs.2,500/- per month. Therefore, towards loss of earnings he is entitled to a compensation of Rs.7,500/-. 14.The Tribunal awarded interest at 6% per annum, which appears to be very low. The claimants are entitled to interest at 7.5% per annum on the compensation already awarded as well as for the additional compensation awarded. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 15. The learned counsel for the Insurance Company would argue that the criminal case ended in acquittal of the second respondent, which is evidenced by Ext.B2 copy of the final report and Ext.B3 certified copy of the judgment in the criminal case and that, therefore, no negligence can be MACA 1294/2008 6 attributed to the second respondent, driver of the offending vehicle. There is no substance in the above contention. It is true that the criminal case ended in acquittal of the second respondent. That does not mean that he was not at all negligent. In the present case, PWs.1 and 2, claimants in both the O.Ps., and PW3, an independent witness, testified in a convincing manner before the Tribunal that there was negligence on the part of the second respondent, driver of the offending jeep. No contra evidence was adduced on the side of the third respondent, Insurance Company, to prove otherwise. Therefore, the Tribunal is justified in accepting the evidence of PWs.1 and 2 and coming to the conclusion that the accident occurred due to the negligence on the part of the second respondent. 16. It was also contended by the counsel for the Insurance Company that the claimant in O.P. (MV) No. 277 of 2003 Sri Sasi was actually driving the motor cycle when the accident took place. There is no substance in the above contention. PW1 Sasi has denied the suggestion and stated MACA 1294/2008 7 that he was riding the motor cycle at the time of accident. PWs.2 and 3 have corroborated his evidence. Insurance Company did not adduce any evidence to prove otherwise. For all these reasons we find that the appeal filed by the Insurance Company is devoid of any merit and it has to be dismissed. 17. In the result M.A.C.A.No.1294 of 2008 filed by the claimant is allowed in part and the claimant is entitled to an additional amount of Rs.18,000/- with interest at the rate of 7.5% per annum from the date of petition till realization and proportionate cost. M.A.C.A No.925 of 2010 filed by the Insurance Company is dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn