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 5TH JANUARY 2011 / 15TH POUSHA 1932 MACA.No. 1919 of 2007() ----------------------- ( OPMV.254/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA) .................... APPELLANT/APPELLANT/THIRD RESPONDENT:- --------------------------------------------------------------------- NATIONAL INSURANCE COMPANY LTD, THALASSERY BRACH OFFICE, THALASSERY,. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:- ------------------------------------------------------------------------------ 1. HARISH K.M., S/O ABDULLA, KOROTH MEETHAL HOUSE, POST NARIPPATTA, KALLACHI PIN 673 506 2. K.C. MOHAMMED, KURUKKAN KUNNUMMAL HOUSE, POST PANOOR, KANNUR DISTRICT PIN 670 692. 3. SIRAJ K.P., KUNDINKARA PEDIKAYIL HOUSE, POST PUTHUR, PANOOR VIA, PIN 670 692. R1 BY ADV. SRI.P.NARAYANAN R2 & 3 BY ADV. SRI.M.SASINDRAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1919 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 5th day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No.254 of 2003 on the file of the Motor Accidents Claims Tribunal, Vadakara. In this appeal the appellant challenges the judgment and award of the Tribunal dated March 27, 2007 awarding a compensation of Rs.5,89,919/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The claimant sustained the following injuries:- 1) Contusion on the top of the shoulder with acromio clavicular disruption. 2) Lacerated injury on the distal thigh communicated with knee joint. 3) Compound fracture of dislocation to subtalar complex of right foot with contaminated open wound on the middle heel through which talus was exposed and there is loss of tendons on the medial aspect of foot. 4) Type IV acromio-clavicular disruption of right shoulder with bracheal plexus injury. MACA 1919/2007 2 5) Crush injury to the right foot with compound substalar dislocation. 6) Difficulty in abduction of right shoulder. 7) Deceased sensation of C3 and C4. 8) Wasting of muscles of right shoulder joint. 9) Gap is felt between acromion and distal end of clavicle. 10) Coraco acromion ligaments exposed. 11) Compound dislocation of midtalar joints of right foot. 12) Vivided quadricepts tendon knee with sub radial contusion. 13) Two obliquely transfers above the knee joint and below the knee joint. 14) Loss of sensation over the midsole and inability to extend the great toe. 15) Pain and swelling on the right shoulder. 16) Abrasion on the side of the face, hear and nose. 17) Lacerated injury on the interior aspect of lower end of thigh and pattellar area and medial aspect of ankle. 18) Loss of nail of middle finger and ring finger. MACA 1919/2007 3 3. The accident happened on September 28, 2002 at Kakkamvalli road. While the claimant was riding his motorcycle bearing registration No. KL-11/L-1927 from Vatakara to Naripetta and when he reached at Kakkamvalli road he was knocked down by a jeep bearing registration No. KL-13/C 1048 driven by the 2nd respondent. Alleging negligence, against the 2nd respondent driver of the offending jeep the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act, claiming a compensation of Rs.11,51,000/-. 4. Respondents 1 and 2, owner and driver of the offending jeep, filed a written statement admitting the accident but attributed negligence to the claimant. The 3rd respondent insurer of the offending jeep filed a written statement admitting the policy of the jeep. The claimant was examined as PW1 and Exts.A1 to A10 were marked on the side of the claimant. Certificate of disability issued by the Medical Board was marked as Ext.X1. Ext.B1 was marked on the side of the respondents. On an appreciation of the MACA 1919/2007 4 evidence, the Tribunal found that the accident occurred due to negligence of the 2nd respondent and awarded a compensation of Rs.5,89,919/- with interest @ 6% per annum from the date of petition till realization and cost of Rs.14,750/-. Respondent No.3, insurer of the offending jeep, has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard learned counsel for the appellant Insurance Company and learned counsel for the claimants. 6. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence of the 2nd respondent the driver of the offending jeep can be sustained? 2) Whether the compensation awarded by the Tribunal is excessive. 7. The learned counsel for the appellant argued that as this is a collision between the two vehicles, the Tribunal ought to have found that there was negligence on the part of the claimant who was riding the motor cycle involved in the accident at the relevant time. There is no substance in MACA 1919/2007 5 the above contention. The claimant as PW1 testified in a convincing manner before the Tribunal regarding the negligence on the part of the driver of the offending jeep. Nothing was brought out during cross-examination to discredit his evidence. That apart, the police has charged the case against the 2nd respondent as revealed from Ext.A1 copy of the FI.R. in the police case. No evidence was adduced by the appellant Insurance Company to prove that there was also negligence on the part of the claimant. Therefore, we confirm the finding of the Tribunal that the accident occurred due to negligence of the 2nd respondent driver of the offending jeep. 8. The Tribunal awarded a total compensation of Rs5,89,919/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs. 40,000 Hospital expenses including : Rs. 12,600 Expenses of bystander and extra nourishment. Transportation : Rs. 5,000 Mental shock and inconvenience : Rs. 25,000 Suffered by him. MACA 1919/2007 6 Loss of income : Rs. 60,000 Medical expenses : Rs.1,92,319 Disability caused : Rs.2,55,000 Loss of love and affection : Rs. ------------------ Total : Rs.5,89,919 ======= 9. Learned counsel for the appellant Insurance Company argued that the compensation awarded by the Tribunal for the loss of permanent disability caused is excessive. The claimant was working as a Sandwitch Maker in Saudi Arabia earning Rs.15,000/- per month, according to him. He produced a copy of his passport Ext.A7. Therefore, the Tribunal is perfectly justified in taking Rs.5,000/- as the monthly income of the deceased. The Tribunal adopted multiplier of 17, as he was aged 23 at the time of the accident. Ext.X1 shows that Medical Board has assessed his disability as 25%. He has undergone six operations and movement of his right shoulder and right leg has been affected. Therefore, the Tribunal is perfectly justified in accepting 25% disability assessed by the Medical Board. The Tribunal awarded a compensation of Rs.2,55,000/- for MACA 1919/2007 7 the permanently disability caused. Taking into consideration the nature of the injuries sustained by the claimant and the disability caused to him, we feel that the compensation awarded by the Tribunal for the permanent disability caused and on other heads as reasonable and not excessive. Further the Tribunal awarded interest only @ 6% per annum. Therefore we are not inclined to interfere with the quantum of compensation awarded by the Tribunal. That being so, the appeal has to be dismissed. In the result the appeal is dismissed. No costs. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn