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 18TH AUGUST 2010 / 27TH SRAVANA 1932 MACA.No. 1520 of 2004(D) ----------------------- OPMV.318/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER ------------------------ KUNJAMMA, W/O.KURIACHAN, POTTACKAL HOUSE, THANKALAM KARA, KOTHAMANGALAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): RESPONDENTS -------------------------- 1. VINESH, S/O.SEBASTIAN, ARACKAPARAMBIL HOUSE, THANKALAM KARA, THRIKKARIYOOR KOTHAMANGALAM TALUK. 2. THE BRANCH MANAGER, THE NEW INDIA INSURANCE CO LTD., IRINJALAKUDA BRANCH. 3. ADDL.R3: M.PADMANABHAN, S/O.MADHAVAN, STATION MASTER, SOUTHERN RAILWAY QUARTERS CHALAKKUDY. (ADDL.R3 IMPLEADED AS PER THE ORDER IN IA.290/2001 DATED 6/2/2001. 4. ADDL.R4: KURIACHAN, S/O.VARGHESE, POTTACKAL HOUSE, THANKALAM KARA. KOTHAMANGALAM. 5. ADDL.R5: THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., MUNNAR BRANCH (ADDL. R4 & 5 IMPLEADED AS PER OREER IN IA.2846/2001 DATED 8/10/2002 ADV. SRI M. JACOB MURICKAN FOR R2, 5(B/O) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1520 of 2004 ------------------------------------------------------ Dated: AUGUST 18, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in OP(MV) 318/2000 on the file of the Motor Accidents Claims Tribunal, Moovattupuzha. She sustained the following injuries in a motor accident that occurred on October 7, 1999 at Thankalam along Thankalam - Kothamangalam road. “Swelling and tenderness over the middle of Rt. upper arm. Tenderness over the (R) hip.” X-ray revealed fracture of right humerus, mid shaft. The accident happened when the motorcycle bearing registration No.KL-7/A.1213 ridden by the claimant's husband collided head on with another motorcycle bearing registration No.KL-8/H-6315. Alleging negligence against the 1st respondent, rider of the motorcycle bearing registration No.KL-8/H-6315, the claimant filed the OP before the Tribunal under Sec.166 of the Motor Vehicles Act claiming compensation. 2. Respondents 1to 3 are the rider, owner and insurer of the motorcycle bearing registration No.KL-8/H-6315. First respondent filed a written statement admitting the accident, but contending that the accident occurred due to the negligence of the rider of the other M.A.C.A.1520 of 2004 2 motorcycle. Second respondent filed a written statement contending that his motorcycle was not involved in the accident. The 3rd respondent remained absent before the Tribunal. Respondents 4 to 6 are the owner, rider and insurer of the motorcycle of the claimant. Respondents 4 and 5 remained absent before the Tribunal. The 6th respondent admitted the policy. 3. This OP was jointly tried along with another OP which was filed by another injured person and a common award was passed. PWs.1 and 2 were examined and Exts.A1 to A18 were marked on the side of the claimant. No evidence was adduced by the contesting respondents. On an appreciation of evidence the Tribunal found that the accident happened due to the negligence of the 2nd respondent and awarded a total compensation of Rs.99,000/- 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 the counsel for the appellant/claimant and the counsel for the Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd 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. M.A.C.A.1520 of 2004 3 6. The claimant sustained a fracture of right humerus. Ext.P8, the discharge summary, shows that it was treated with closed nailing. As the fracture has not united, open reduction and internal fixing and bone grafting were done as seen from the discharge summary Ext.A9 dated 8.3.2000. Ext.A10, the certificate of disability issued by PW.2, shows that she has a permanent disability of 10%. The movement of right shoulder is restricted. The claimant was working as an U.D.Clerk in Government service earning more than Rs.5000/- per month as evidenced by Ext.A11, her salary certificate. 7. The break up of the compensation amount awarded is as under: loss of income Rs.17,000/- transportation 500/- extra nourishment 2,000/- damage to clothing 1,000/- treatment expenses 43,500/- attendant's expenses 2,000/- pain and suffering 15,000/- disability 10,000/- loss of amenities 8,000/- 8. Counsel for the claimant sought enhancement of the compensation for loss of amenities and enjoyment of life and on other heads. The Tribunal awarded a compensation of Rs.8000/- for loss of amenities and enjoyment of life. Taking into account the serious nature of the injuries sustained by the claimant, we feel that a compensation of Rs.15,000/- would be reasonable on this count. M.A.C.A.1520 of 2004 4 Thus the claimant is entitled to an additional compensation of Rs.7000/- on this count. 9. The Tribunal awarded compensation of Rs.10,000/- for the disability caused. Taking into account the nature of the injuries sustained by the claimant and the disabilities caused, we feel that a compensation of Rs.30,000/- would be reasonable on this count. Thus the claimant is entitled to an additional compensation of Rs.20,000/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 10. Thus the claimant is entitled to an additional compensation of Rs.27000/-. She is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 2nd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. 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/-