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 17TH MARCH 2010 / 26TH PHALGUNA 1931 MACA.No. 524 of 2010() -------------------------------- OPMV.215/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT: 1ST RESPONDENT --------------------------------------------- THE MANAGING DIRECTOR, BHARATHIYA TRANSPORT CORPORATION, OOTTY, (BUS NO. TN 43/0084), (OWNER AND INSURER OF THE VEHICLE), MERGED AS TAMILNADU STATE TRANSPORT CORPORATION LTD. BY ADV. SRI. P.RAVINDRAN, SENIOR ADVOCATE RESPONDENTS: PETITIONER & 2ND RESPONDENT ------------------------------------------------------------------------ 1.P.SIVASANKAR, S/O. BASWAN, ROCKWOOD ESTATE, EMERALD DIVISION, NETHUKOTTA P.O., GUDALUR, NILGIRIS. 2.SAYID JAFAR, DTC DRIVER, BADGE NO.11348, COONNOOR. (DRIVER OF THE VEHICLE). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pkk A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------------ M.A.C.A NO. 524 OF 2010 ----------------------------------------- DATED THIS THE 17TH DAY OF MARCH 2010 JUDGMENT ---------------- Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the 1st respondent is in O.P(MV) No. 215/97 of the Motor Accidents Claims Tribunal, Kalpetta challenges the judgment and award of the Tribunal dated 1.10.2004 awarding a compensation of Rs. 1,11,000/- to the 1st respondent/claimant for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these: On 13.10.1996 at about 6.30p.m, the 1st respondent/ claimant was travelling in bus No. TN-43/0084 from Gudaloor to Mysore. The bus belonged to the appellant and was driven by the 2nd respondent. When the bus reached at Angala Village, due to the negligence on the part of the driver of the bus, it hit against a tree on the side of the road. The claimant sustained serious injuries. M.A.C.A NO. 524 OF 2010 2 The accident occurred due to the negligence on the part of the driver of the bus, the 2nd respondent. The appellant/1st respondent as the owner of the bus and the 2nd respondent as the driver are jointly and severally liable to pay compensation to the claimant. 3. The appellant/1st respondent and 2nd respondent have filed a joint written statement before the Tribunal contending that there was no negligence on the part of the driver of the bus as the accident occurred when the driver suddenly turned the bus to save a child. 4. The claimant was examined as PW1 before the Tribunal and Exts. A1 to A4 were marked on the side of the claimant. No evidence was adduced by the contesting respondents before the Tribunal. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the driver of the bus and awarded a compensation of Rs. 1,11,000/- to the claimant. The 1st respondent in OP(MV) No. 215/97, the owner of the bus has now come up in appeal challenging the judgment M.A.C.A NO. 524 OF 2010 3 and award of the Tribunal. 5. Heard the counsel for the appellant. No notice was issued to the respondents as on going through the judgment of the Tribunal, we felt that even without notice to the respondents this appeal can be disposed of. 6. The following points arises for consideration; i) whether the findings of the Tribunal that the accident occurred due to the negligence on the part of the driver of the bus, 2nd respondent can be sustained ? ii)Whether the compensation awarded is excessive Point No.1: The counsel for the appellant argued that the accident occurred when the driver of the bus suddenly turned the bus to save a child and that therefore there is no negligence on the side of the driver. There is no substance in the above contention. The accident itself shows that there was negligence on the part of the driver of the bus. The bus hit on a tree on the side of the road. M.A.C.A NO. 524 OF 2010 4 Unless there was negligence on the part of the driver, the accident would not have happened. Further PW1, the claimant has testified regarding the negligence on the part of the driver before the Tribunal. No contra evidence was adduced on the side of the appellant/1st respondent. The 2nd respondent, the driver of the bus has not come forward swearing that there was no negligence on his part. Therefore the Tribunal is perfectly justified in holding that the accident occurred due to the negligence of second respondent, the driver of the bus. Point No.2: The important question for consideration is whether the compensation awarded by the Tribunal is excessive. The claimant has sustained the following injuries; 1. lacerated wound over the right foot 2. lacerated wound over the left palm and 3. compound fracture of right angle Ext.A2 certificate of disability issued by the hospital shows M.A.C.A NO. 524 OF 2010 5 that claimant has suffered disability of 20%. Ext.A3 photo shows the present state of his right foot. Taking into consideration all these aspects, the Tribunal awarded a total compensation of Rs. 1,11,000/-. The break up of the compensation awarded is as under; Loss of earnings = Rs. 3,000/- Transportation charges = Rs. 2,000/- Extra nourishment = Rs. 500/- Bystander expense = Rs. 500/- Treatment expense = Rs.15,000/- Pain and suffering = Rs.20,000/- and for the disability caused = Rs.60,000/- 7. The counsel for the appellant/ first respondent argued that the compensation awarded by the Tribunal is excessive. We are not inclined to agree. Taking into account the nature of the injuries sustained by the claimant and the period of treatment he had undergone, we are of the view that the compensation awarded M.A.C.A NO. 524 OF 2010 6 by the Tribunal is just and reasonable and not excessive. Therefore we find no reason to disturb the same. That being so, the appeal is devoid of any merit and the same has to be dismissed. In the result, the appeal is dismissed. No cost. A.K.BASHEER (JUDGE) P.Q. BARKATH ALI (JUDGE) pkk