IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 MACA.No. 138 of 2004() ---------------------- OPMV.366/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER :- -------------------------------------- U.K.THRIVEDI, S/O.SHIV PUJAN THRIVEDI, AGED 49 YEARS, HONARARY HAVILDAR, MILITARY HOSPITAL, KANNUR, `TEEKNYWAS', P.O.KACHNARI, (VIA) KUPPA BAZAR, CHAPPRA BIHAR (DIST.), BIHAR. BY ADV. MR.GRASHIOUS KURIAKOSE RESPONDENT(S)/RESPONDENTS 1 & 2 :- ------------------------------------------------------ 1. V.V.SHELLY, HOUSE NO.XVIII, 1150, THOPPUMPADY, KOCHI-5. 2. NATIONAL INSURANCE CO. LTD., REP. BY ITS DIVISION MANAGER, KANNUR DIVISION, KANNUR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010 ALONG WITH MACA NO. 177 OF 2004 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt A.K.BASHEER & P.Q. BARKATH ALI, JJ. =========================== M.A.C.A. Nos.138 &177 of 2004 ===================== Dated this the 20th day of May 2010 J U D G M E N T Barkath Ali, J: Both these appeals under section 173 of the Motor Vehicles Act arise out of the common judgment and award of the Motor Accidents Claims Tribunal, Thalassery in O.P. (MV)No.366 of 1996 and O.P.(MV)No.1477 of 1996 dated July 30, 2002. M.A.C.A. 138 of 2004 is by the claimant in O.P.(MV)No.366 of 1996 and M.A.C.A. 177 of 2004 is by his son, the claimant in O.P.(MV)No.1477 of 1996. 2. The facts leading to these appeals, in brief, are these:- Claimants are father and son. The claimant in O.P. (MV)No.366 of 1996 was aged 42 at the time of the accident and was working as Havildar in Indian Army M.A.C.A. Nos.138 &177 of 2004 -2- earning Rs.4,457/- per month. Claimant in O.P.(MV) No.1477 of 1996 is his son aged 11. On April 11, 1995, the claimant in O.P.(MV)No.366 of 1996 was riding his scooter with his son as pillion rider. When they reached near Central School, Kannur, a car bearing Registration No.KEV 7846 owned by the 1st respondent and driven by the 3rd respondent came at a high speed and dashed against the scooter of the claimants. The claimants sustained serious injuries. According to the claimants, the accident occurred due to the rash and negligent driving of the offending car by 3rd respondent. 1st respondent as the owner, 2nd respondent as the Insurer and 3rd respondent as driver of the offending car are jointly and severally liable to pay compensation to the claimants. The claimants claimed a compensation of Rs.10,00,000/- and Rs.2,00,000/- respectively. 3. The respondents 1 and 3, the owner and the driver of the offending car remained absent and were set M.A.C.A. Nos.138 &177 of 2004 -3- ex parte by the Tribunal. The 2nd respondent, the Insurer of the offending car filed a written statement admitting the policy and further contending that there was also negligence on the part of the rider of the scooter. 4. Both these O.Ps were jointly tried and a common award was passed by the Tribunal. Exts.A1 to A12 were marked by the claimants. Exts.X1 to X3 were also marked. No evidence was adduced by the contesting 2nd respondent. 5. On an appreciation of the evidence, the Tribunal awarded a compensation of Rs.25,800/- in O.P.(MV)No.366 of 1996 and Rs.25,900/- in O.P.(MV)No.1477 of 1996. The claimants have now come up in appeal, challenging quantum of compensation awarded by the Tribunal. 6. Heard the learned counsel for the claimants and for the Insurance company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 3rd respondent is not seriously challenged M.A.C.A. Nos.138 &177 of 2004 -4- in this appeal. Therefore, the only question which arises for consideration is whether the claimants are entitled to any enhanced compensation. 8. The claimant in O.P.(MV)No.366/1996 who is the appellant in M.A.C.A.No.138/2004 was working as Havildar in Indian Army earning Rs.4,457/- per month. He sustained comminuted fracture of both bones of right lower limb as evidenced by Ext.X1, the case sheet maintained in the A.K.G.Hospital, Kannur. He produced before the Tribunal Exts.A1 to A8. Exts.A1 and A2 are the copies of F.I.R. and scene mahazar. Ext.A3 is the Admission/Discharge certificate from the hospital. Ext.A4 is the pay certificate. Ext.A5 series are the medical bills. Ext.A6 is the copy of the discharge certificate from the Military Department recommending him for civil employment. 9. The Tribunal awarded a total compensation of Rs.25,800/-. Break up of the compensation awarded is as under:- M.A.C.A. Nos.138 &177 of 2004 -5- Transportation expenses : Rs.250/- Bystander expenses : Rs.700/- Treatment expenses : Rs.2,350/- For pain and suffering : Rs.15,000/- For loss of amenities and enjoyment of life : Rs.7,500/- ------------------- Total : Rs.25,800/- ======== 10. The learned counsel for the Claimant sought enhancement of the compensation for the loss of amenities and enjoyment of life, for the pain and suffering and loss of future prospects. 11. Taking into consideration the nature of the injury sustained and the period of treatment the claimant had undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. There is another aspect in this case. As a result of injury sustained he was discharged from the Army as revealed from Ext.A6 certificate. Therefore, for loss of future prospects in life, we feel that a compensation of Rs.25,000/- would be reasonable. 12. The claimant in O.P.(MV)No.1477/1996, who is M.A.C.A. Nos.138 &177 of 2004 -6- the appellant in M.A.C.A.No.177/2004 sustained fracture of both bones of right lower limb. He was a child aged 11. Ext.A9 is the admission/discharge certificate. Ext.A10 is the discharge slip. Ext.A11 is the prescription and Ext.A12 series are the medical bills. Ext.X1 is his case sheet. He was in the hospital for 7 days. 13. The Tribunal awarded a total compensation of Rs.25,900/-. Break up of the compensation awarded is as under:- Transportation expenses : Rs.250/- Hospitalization expenses : Rs.700/- Extra nourishment : Rs.500/- Medical bills : Rs.4,450/- For pain and suffering : Rs.15,000/- For loss of amenities and enjoyment of life : Rs.5,000/- ------------------- Total : Rs.25,900/- ======== 14. Taking into consideration the nature of injury sustained and the period of treatment he had undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. That apart, taking into consideration M.A.C.A. Nos.138 &177 of 2004 -7- the serious injury sustained by the claimant, we feel that a compensation of Rs.25,000/- for the loss of future prospects would be reasonable. 15. Thus, the claimants/appellants in both these appeals are entitled to an additional compensation of Rs.25,000/- each. They are entitled to interest @ 9% per annum from the date of petition till realisation. The 2nd respondent being the Insurer of the offending car shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimants. Both the appeals are disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. jvt M.A.C.A. Nos.138 &177 of 2004 -8-