IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 MACA.No. 938 of 2010 ---------------------- OPMV.1128/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT 3RD RESPONDENT ---------------------------- NATIONAL INSURANCE CO.LTD., KOLLANNUR DEVASSY SMARAKA BUILDING, HIGH ROUND NORTH, THRISSUR REPRESENTED BY THE MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: CLAIMANT & R1, 2, 4 TO 5 --------------------------------------- 1. SUJITH.G., S/O.GOPALAKRISHNAN, NOCHUR VILLAGE, KODUVAYUR, PALAKKAD. 2. P.J.JOLY, S/O.THOMAS, RESIDING AT PALLIPPARAMBIL HOUSE, PERUVANKULANGARA, OLLUR POST, THRISSUR. 3. PAULSON PAUL, THALEKKADAN HOUSE, DOOR NO.32/321, ITC DIXVILLA, KUNCHERA, THRISSUR. 4. SUJEESH, S/O.RAJAN, CHARANATHUKULAM, KODUVAYUR POST, PALAKKAD DISTRICT. 5. BHASKARAN, S/O.CHAMIYAR, CHARANATHUKULAM, KODUVAYUR, PALAKKAD. 6. THE NEW INDIA ASSURANCE CO.LTD., SREEVALLI BUILDINGS, ANICKODE, CHITTUR, PALAKKAD. ADV. SRI.U.BALAGANGADHARAN FOR R4,5 SRI.VPK.PANICKER FOR R6 SRI.U.BALAGANGADHARAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 938 OF 2010 ============================ Dated this the 17th day of October 2011 JUDGMENT R.Basant, J. The Insurance company is the appellant. The claimant had claimed compensation for personal injuries suffered by him in a motor accident which took place on 16/3/2004. He was a pillion rider in a motor cycle at the relevant time. The claimant had arrayed driver, owner and insurer of both vehicles as respondents in the claim petition. The Tribunal, on the evidence available before it, came to the conclusion that the driver of the Mini Lorry involved in the accident was negligent and he was responsible for the accident. It was found that there was no negligence on the part of the rider of the motor cycle in which the claimant was travelling at the relevant time. The Tribunal, thereupon proceeded to award a total amount of Rs.2,80,748/- as compensation as per the details given below: 1)Loss of earnings :Rs. 3,000/- 2)Transportation :Rs. 3,000/- 3)Extra nourishment :Rs.2,000/- MACA 938/2010 2 4)Damage to clothings :Rs. 500/- 5)Medical expenses :Rs.38,848/- 6)Bystander expenses :Rs. 4,000/- 7)Pain and sufferings :Rs. 25,000/- 8)Disability :Rs.1,94,400/- (3000x12x18x30/100) 9)Loss of amenities :Rs. 5,000/- 10)Loss of marriage prospects :Rs. 5,000/- Total :Rs.2,80,748/- with interest at the rate of 7.5% per annum. 2. The Insurer of Mini Lorry- appellant claims to be aggrieved by the impugned award. The challenge is raised against the impugned award on two grounds. First of all, it is contended that the finding on the question of negligence is unsustainable. Secondly it is contended that the quantum of compensation awarded is excessive. 3. Coming to the challenge against the finding regarding negligence, two vehicles are involved in the accident. The claimant had arrayed the driver, owner and insurer of both vehicles on the party array. No oral evidence was adduced by MACA 938/2010 3 any one of the respondents in support of their respective version. The only piece of evidence available was the final report submitted by the police after due investigation marked as Ext.A5. The claimant had examined himself as PW1. The Tribunal, on the basis of the said piece of evidence, had concluded that the accident had taken place on account of the negligence of the driver of the insured Mini Lorry. 4. Learned counsel for the appellant submits that the mini lorry was proceeding from west towards east on a road lying east west. The motor cycle in which the claimant was travelling was proceeding in the opposite direction from east to west. The road at the scene of the crime was a width of 7 metres. The accident had taken place on a spot marked in the scene mahazar at a distance of 3 metres north of the southern kerb of the road. The learned counsel for the Insurance Company contends that this indicates that negligence was on the part of the rider of the motor cycle. 5. We are unable to agree. The total width of the road is 7 metres. The imaginary midline runs at a distance of 3.5 metres from either side of the kerb. The accident was at a spot 3 MACA 938/2010 4 metres north of the southern kerb. Keep left is the basic rule of the road in India. It is revealed that the accident took place on the southern half of the road earmarked for the traffic from east towards west. The insured Mini lorry which was proceeding from west to east must explain how the vehicle happened to cross over to the wrong (right hand side of the imaginary midline). No explanations are forthcoming. We are satisfied in these circumstances that following the dictum in New India Assurance Co.Ltd. v. Pazhaniammal [2011(3)KLT 648]., reliance can safely be placed on the final report submitted by the police after due investigation. In this case, we further have the evidence of PW1 in support of the claimant. We have the further crucial circumstance that the appellant/insurer, driver and owner of the vehicle had not adduced any evidence to controvert the evidence of PW1. The action of the police filing the final report after due investigation and the scene mahazar locating the spot of the accident are insufficient, at any rate to conclude that the insured Mini Lorry driver was negligent. The challenge on the first ground must therefore fail. 6. It is next contended that the quantum of compensation MACA 938/2010 5 awarded is excessive. The claimant had suffered serious injuries. Called upon to explain and be specific, the learned counsel for the appellant submits that the appellant is aggrieved by the quantum of compensation awarded under the head of disability. Though called disability, the compensation awarded is for reduction in earning capacity. The disability certificate shows that the disability was 40%. The author of the certificate was not examined. The Tribunal in these circumstances had accepted only 30% as the reduction in earning capacity. 18 was reckoned as the multiplier and Rs.3,000/- was reckoned as the monthly earnings of the claimant. 7. The disability certificate produced shows that the claimant had suffered loss of smell, bilateral hearing deficit and recent memory deficit as a consequence of the injury suffered which included a serious head injury 8. We are, in these circumstances, unable to agree with the learned counsel for the appellant that the Tribunal has committed any such error warranting appellate interference by invoking our jurisdiction under Section 173 of the Motor Vehicles Act, when It came to the conclusion that 30% reduction MACA 938/2010 6 in earning capacity can safely be assumed. We turn down the challenge raised in that ground. No other contentions are raised. We are satisfied in these circumstances that the impugned award does not warrant interference. 9. In the result, this appeal is dismissed. Sd/- R.BASANT, JUDGE Sd/- M.C. HARI RANI,JUDGE ks. true copy P.S.to Judge