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 7TH APRIL 2010 / 17TH CHAITHRA 1932 MACA.No. 3246 of 2009() ----------------------- OPMV.1963/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER -------------- E.T. VINIL THOMA, AGED 33 YEARS, S/O. LATE THOMAS, ERAVELIL HOUS, PALIYAM ROAD, M.G. ROAD P.O., ERNAKULAM VILLAGE, ERNAKULAM DISTRICT AND NO RESIDING AT H. NO.22/163 NEAR NISHA TRADERS/NEAR AQUINA COLLEGE, EDAKOCHI. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER RESPONDENT(S): RESPONDENTS --------------- 1. M/S MGF MOTORS PRIVATE LIMITED, THAMPI'S BUILDING, M.G. ROAD, COCHIN 682 011. 2. P.V. RAJESH KHANNA, S/O. VIJYAN, PEREPARAMBIL HOUSE, NORTH OF ST. MATHEW'S CHURCH, VENNALA, COCHIN 682 028. 3. THE NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, M.G. ROAD, COCHIN -16. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.3246 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1963/2002 of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated December 18, 2008 awarding a compensation of Rs. 1,61,000/- for the loss caused to him 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 26 and used to earn Rs. 24,000/- per month as X-ray welder in NICO International, Dubai. On June 14, 2002 at about 3.15 p.m., he was pillion riding on the motor cycle bearing Reg.No.KL-7/AH 2101. The motor cycle was ridden by one Vinil Thomas, the claimant in O.P.(MV)No.1879/2002. When they reached near Volga Tourist Home, Kadavanthra, a car bearing Reg. No. KL-07-TC/30-98/E driven by the second respondent came at M.A.C.A.No.3246/2009 2 a high speed from the opposite side and dashed against the motor cycle of the claimant. According to the claimant, accident occurred due to the rash and negligent driving of the offending car by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending car are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and driver of the offending car remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending car filed a written statement admitting the policy. This O.P. was jointly tried along with O.P.(MV) No.1879/2002 filed by the rider of the motor cycle and a common award was passed. 4. Exts.A1 to A16 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. Exts.A9 to A16 relates to the present claimant. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending car by second respondent and awarded a compensation of Rs. 1,61,000/-. The M.A.C.A.No.3246/2009 3 claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation ? 7. Ext.A10, the copy of the wound certificate shows that the claimant has sustained abrasions on both upper limbs, clinically fracture of right femur and clinically fracture at right leg. Ext.A11 is the discharge summary issued from the Medical Trust Hospital, Ernakulam. As per the said document, the date of admission is 14-06- 2002 and date of discharge is 11-07-2002. In the column of diagnosis it is noted that closed comminuted fracture middle 1/3( R) femur, closed comminuted fracture right tibia. Closed IL nailing ( R) femur and external fixator application ( R) leg done under GA epidural on M.A.C.A.No.3246/2009 4 14-06-2002. External fixator readjustment ( R) leg done under GA epidural on 15-06-2002. At the time of discharge review after three weeks in Ortho OPD is directed. Ext.A12 is the disability certificate which shows that petitioner is having a permanent disability of 15%. 8. The Tribunal awarded a total compensation of Rs. 1,61,000/-. The break up of the compensation awarded is as follows : Pain and suffering -Rs. 28,000/- Medical bills -Rs. 75,500/- Bystander expenses -Rs. 3,000/- Loss of income -Rs. 25,000/- Transportation expenses -Rs. 2,000/- Extra nourishment -Rs. 2,500/- Loss of amenities -Rs. 25,000/- ----------------- Total -Rs. 1,61,000/- =========== 9. Counsel for the claimant sought enhancement of the compensation awarded for pain and suffering and loss of amenities. Taking into consideration the nature of the injury sustained and the period of treatment undergone by the claimant, we feel that the compensation awarded by the Tribunal is just and reasonable. It follows that the claimant is not entitled to any enhanced compensation. M.A.C.A.No.3246/2009 5 In the result, Appeal is dismissed. Parties shall bear their own costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. M.A.C.A.No.3246/2009 6