IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 MFA.No. 374 of 2002() --------------------- OPMV.1173/1996 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR .................... APPELLANT: PETITIONER: ---------------------- 1. P.SREEMATHI, AGED 49 YEARS,W/O.VIJAYAN, SREEVIHAR, MAHI, PONDICHERI STATE. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENTS: RESPONDENTS: ------------------------- 1. T.V.RAJAN, AGED 46 YEARS, T.A.VARUGHESE, THYPARAMBIL HOUSE, NAUTHIKULANGARA, MANNAM P.O. 2. SMT.CICILY MATHEW, AGE NOT KNOWN, W/O.P.D.MATHEW, PLATHOTTAN, PERUNILAM,POONJAR P.O. 3. NATIONAL INSURANCE COMPANY LTD., ALUVA DIVISIONAL OFFICE,URUMBATH BUILDING, PUMP JUNCTION, ALUVA, ERNAKULAM DISTRICT. R3 BY ADV. SMT.SARAH SALVY R2 BY ADV. SRI.BABY THOMAS SRI.GIGIMON ISSAC THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- M.F.A.No.374 of 2002 ------------------------------------------------- Dated, this the 27th day of February, 2008 JUDGMENT The claimant in O.P.(MV) No.1173/1996 on the file of Motor Accidents Claims Tribunal, Tirur is the appellant. Appeal is filed against an award passed by the Tribunal dismissing a batch of claim petitions filed by the passengers in a stage carriage bus on the ground that the accident occurred due to a mechanical defect which occurred while the bus was plying and beyond the control of the driver and as such there was no rashness or negligence on the part of the driver. 2. On 22.6.1994 at about 12.30 p.m. the appellant was travelling in a stage carriage bus bearing registration No.KL 5A/6264 from Guruvayur side towards Calicut. When the bus reached the place of accident a sound was heard and bus turned in a circular way and thereafter overturned on the eastern side of the road. Bus caught fire also. Number of passengers including the appellant sustained injuries. It was alleged that accident occurred due to the negligence of the driver of the bus. Insurer was also impleaded. Owner and driver did not file any written statement. Insurer alone contested the matter. It was contended that accident occurred due to the sudden separation of the propeller shaft at the slip joint near the gear box and not on account of the rash or negligent driving on the part of the driver. Quantum of compensation claimed was disputed. Subsequently an additional written statement was also filed raising a contention that the driver MFA No.374/2002 2 was not having any valid driving licence. As already stated Tribunal found that there was no negligence on the part of the driver and dismissed all the applications. Challenging that award this appeal is filed. 3. Learned counsel for the appellant has argued that jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. It is argued that the Tribunal ought to have applied strict liability and awarded compensation. Learned counsel for the appellant relied on a decision of the Supreme Court reported in Kaushnuma Begum v. New India Assurance Co. Ltd. (2001 (1) KLT 408 (SC)) in which it was held that even apart from Section 140 of the Motor Vehicles Act a victim in an accident which occurred while using a motor vehicle is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. 4. Another person who sustained injuries filed O.P.(MV) No.1172/1996 claiming compensation. That Original Petition was dismissed finding that there was no negligence on the part of the driver. Challenging the award passed in O.P.(MV) No.1172/1996 the applicant in that case filed M.F.A.No.108/2001 before this Court. A learned Single Judge of this Court relying on Kaushnuma Begum's case (supra) found that claimant is entitled to get compensation. So the finding of the Tribunal that the appellant was not entitled to get any compensation as there was no negligence on the part of the driver is unsustainable and liable to be set aside. Tribunal found that in the normal course MFA No.374/2002 3 appellant would have been entitled to get a compensation of Rs.2,300/-. Tribunal awarded only Rs.1,000/- for pain and suffering which according to the me is very low. Tribunal ought to have awarded at least Rs.3,500/- for pain and suffering. For medical expenses, transportation, etc. Tribunal ought to have awarded Rs.1,500/-. I am of the view that the Tribunal ought to have awarded a compensation of Rs.5,000/-. Appellant is entitled to get interest at the rate of 7.5% from the date of petition. Miscellaneous First Appeal is disposed of as above. K. PADMANABHAN NAIR, JUDGE. cks MFA No.374/2002 4 K.PADMANABHAN NAIR, J. M.F.A.No.374 of 2002 JUDGMENT 27th February, 2008.