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 24TH MARCH 2010 / 3RD CHAITHRA 1932 MACA.No. 590 of 2010() -------------------------------- OPMV.1645/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THIRUVANANTHAPURAM .................... APPELLANT: PETITIONER: ------------------------------------------ P.SANKARAN, S/O.KELU NAIR, RAJEEVAM, FLORYCAN HILL ROAD, CIVIL STATION, KOZHIKODE. BY ADV. SRI.C.VALSALAN SRI.GHOSH YOHANNAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT: RESPONDENTS: -------------------------------------------- 1.P.SAIDALAVI, S/O.OMAMMOTH, MARATHU HOUSE OZHUKUR, MONGAM, ERANADU, MALAPPURAM. 2.THE SECRETARY, FAMILY WELFARE, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3.MUHAMMAD SHAH, S/O.ALAVIKUTTY, VELUTHODU VEEDU, OZHUKUR, MORAYOOR VILLAGE, ERANADU, MALAPPURAM. 4.VIJAYAKUMAR, S/O.JANARDHANAN NAIR, PURNAMI, CLIFF HOUSE COMPOUND, NANTHANCODE, THIRUVANANTHAPURAM. 5.DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., ST.JOSEPH'S PRESS BUILDING, VAZHUTHAKKAD, THIRUVANANTHAPURAM. 6.THE DIRECTOR, KERALA STATE INSURANCE DEPARTMENT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------------- M.A.C.A NO. 590 OF 2010 -------------------------------------- DATED THIS THE 24TH DAY OF MARCH 2010 JUDGMENT ---------------- Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV) No. 1645/2002 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram challenges the judgment and award of the Tribunal dated 27.7.2009 awarding a compensation of Rs. 2,00,000/- for the loss suffered by the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 54 at the time of the accident and was the State Health Minister, earning a salary of Rs. 10,000/- per month and also earning Rs. 15,000/- per month from his profession as an advocate, according to the claimant. On 1.1.2002 at about 4.40 p.m., he was travelling in the State car bearing registration No. 14 along Attingal-Thiruvananthapuram National Highway road. When he reached near 16th Mile at Thonakkal – Mangalapuram road, a lorry M.A.C.A NO. 590 OF 2010 2 bearing registration No. KL-13/3877 came at a high speed from the opposite direction and dashed against the car in which the claimant was travelling. The claimant sustained serious injuries. The accident occurred due to the rash and negligent driving of the offending lorry by its driver. The 1st respondent is the owner, 3rd respondent is the driver and 5th respondent is the insurer of the offending lorry. The 2nd respondent is the owner of the State car in which the claimant was travelling. The 4th respondent is its driver and 6th respondent is its insurer, ie. State Insurance Department. Claimant claimed a compensation of Rs. 10,00,000/- 3. Respondents 1 to 4 remained absent and were set ex-parte by the Tribunal. The 5th respondent, insurer of the offending lorry filed a written statement admitting the policy and further contending that the accident occurred due to the negligence on the part of the driver of the car. 4. The 6th respondent, the Kerala State Insurance Department filed a written statement admitting the policy but contending that M.A.C.A NO. 590 OF 2010 3 accident occurred due to the negligence on the part of the driver of the lorry. 5. This OP(MV) was jointly tried with OP(MV) Nos. 1286/2002, 1490/2002 as all those OP(MV) arose out of the same accident. Exts. A1 to A5 were marked on the side of the claimant. No evidence was adduced by the contesting respondents. 6. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence on the part of the driver of the lorry and awarded a compensation of Rs. 2 lakhs. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 7. Heard the learned counsel for the appellant/ claimant and the counsel for the Insurance Company. 8. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the offending lorry is not challenged in this appeal. Therefore, the only question which arises for consideration is whether M.A.C.A NO. 590 OF 2010 4 the claimant is entitled to any enhanced compensation ? 9. The claimant sustained a comminuted fracture shaft of right femur as seen from Ext.A 19, the wound certificate issued from the Medical College Hospital, Thiruvananthapuram. Ext.A10, copy of the treatment certificate shows that claimant was treated by closed interlocking nail for fracture of right femur. Ext. A20 certificate issued by Dr. Cherian M.Thomas, Orthopaedic Surgeon, S.P. Fort Hospital, Thiruvananthapuram shows that the claimant has now a permanent disability of 10% due to 2.5 cm shortening of the femur with limitation of last 100 flexion. Ext. 21 is the salary particulars of the petitioner issued by the Sub Treasury office, Secretariat, Thiruvananthapuram showing that he was drawing a gross salary of Rs. 16,565/-. Ext.A21 is of the year 2004 and the accident was in the year 2002. Therefore, the Tribunal took his monthly income as Rs. 7,000/- and took the disability as 10% as shown in Ext.A20 and adopted a multiplier of 8. 10. The Tribunal awarded a total compensation of Rs. 2 lakhs. The break up of the award amount is as under: M.A.C.A NO. 590 OF 2010 5 Heads of compensation Amount Remarks awarded -------------------------------------------------------------------------- Loss of earning Rs. 42,000 For 6 months Medical and incidental Rs. 2,500 No bills produced expenses Transportation to the Rs. 1,500 hospital. Extra nourishment Rs. 4,000 Engaging a bystander Rs. 2,000 IP treatment for 20 days Damage to clothing Rs. 500 Pain and suffering Rs. 30,000 Permanent disability Rs. 67,200 7000 x 12 x 8 x 10% resulting resulting in loss of earning power. Loss of amenities Rs. 50,000 ----------------- --------------------- Total Rs. 1,99,700/- rounded to 2 lakhs ========= ============= 11. The learned counsel for the claimant sought enhancement of the amount awarded for disability, pain and suffering and loss of M.A.C.A NO. 590 OF 2010 6 earnings and for medical expenses. The Tribunal awarded Rs. 2500/- for medical and incidental expenses. The Counsel for claimant argued that considering the nature of injuries sustained by the claimant the above amount is quite inadequate. There is no force in the above contention. The claimant being the then Health Minister could have obtained reimbursement of the entire expenses for treatment. Therefore, in our view, the Tribunal is perfectly justified in awarding Rs. 2500/- for the medical expense. 12. Rs. 67,200/- was awarded for the disability caused. The Counsel for appellant/ claimant argued that Ext. A21, the Salary Certificate shows the salary of claimant as Rs. 16,565/-, that the Tribunal took the salary of claimant as only Rs. 7,000/- which is not correct and that the Tribunal should have accepted Ext. A21 and taken the salary of claimant as shown therein for assessing the compensation for the disability caused. We are unable to agree. Ext.A21 is of the year 2004. Accident was in 2002. Therefore the Tribunal is right in fixing his monthly income as Rs. 7,000/- and awarding Rs. 67,200/- for M.A.C.A NO. 590 OF 2010 7 the disability caused, which in our view is quite reasonable. 13. Taking into account the nature of the injuries sustained and the period of treatment, claimant has undergone, we feel that compensation awarded under other heads are also reasonable and therefore, we are not inclined to disturb the same. For all these reasons, we hold that the appeal is devoid of any merit and dismisses the same. Parties shall suffer their own cost. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE pkk