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 4TH AUGUST 2010 / 13TH SRAVANA 1932 MACA.No. 415 of 2004(B) ---------------------- OPMV.175/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/CLAIMANT -------------------------------- LILLY JACKULINE @ LILLY, W/O. PRAKASH J., HOUSE NO. VI-12/319, PALACHALKONAM, KATTACHALKUZHI P.O., (VIA) BALARAMAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENT(S): RESPONDENTS -------------------------- 1. S.SUNILKUMAR, T.C. 13/155, KOCHUMADAVILAKOM, NALUMUKKU, PETTAH P.O., THIRUVANANTHAPURAM. 2. JAYACHANDRAKUMAR, CHATHRAMMODA HOUSE, KANJIRAMPARA, THIRUVANANTHAPURAM. 3. M/S. ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, THAKARAPARAMBU JUNCTION, PAZHAVANGADI, THIRUVANANTHAPURAM. ADV. SRI.VPK.PANICKER FOR R3 SRI.GEORGE CHERIYAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 415 of 2004 ------------------------------------------------------ Dated: AUGUST 4, 2010 JUDGMENT Barkath Ali, J. The appellant, a lady aged 28, is the claimant in OP(MV) 175/1999 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. She sustained the following injuries in a motor accident that occurred on January 23, 1999: “fracture both bones of (L) forearm and lower end, cut wound on the (R) cheek, multiple abrasions all over the body, lacerated wound 1 x 0.5 cm. over (R) molar region, punctured wound over wrist.” 2. The accident happened while she was travelling in an autorickshaw bearing registration No.KCT-7662 along Vizhinjam - Balaramapuram public road and at Balaramapuram due to the negligence of the driver, the autorickshaw capsized. Alleging negligence against the 2nd respondent, the driver of the offending autorickshaw, and claiming a compensation of Rs.1 lakh, she filed the OP before the Tribunal against respondents 1 to 3, the owner, driver and insurer of the offending autorickshaw. 3. Respondents 1 and 2 remained absent before the Tribunal. The 3rd respondent, the alleged insurer of the offending autorickshaw, M.A.C.A. 415 of 2004 2 filed a written statement denying the policy and further contending that the vehicle insured with the 3rd respondent is KCT 7962. 4. This OP was tried along with other OPs filed by other injured persons in the accident and a common award was passed. PW.1 was examined and Exts.A1 to A18 were marked on the side of the claimants. On the side of the contesting 3rd respondent RW.1 was examined and Exts.B1 and B2 were marked. On an appreciation of evidence the Tribunal awarded a compensation of Rs.35,700/- with interest @ 9% per annum from the date of petition till realisation. The Tribunal has also found that the claimant has failed to prove that the offending vehicle was insured with the 3rd respondent company and that therefore the 1st respondent/owner of the offending vehicle is bound to pay the compensation. The claimant has now come up in appeal challenging the above findings of the Tribunal and also the quantum of compensation awarded by the Tribunal. 5. Heard counsel for the appellant/claimant and that of the Insurance Company. 6. The following points arise for consideration: 1. Whether the finding of the Tribunal exonerating the Insurance Company can be sustained? 2. Whether the claimant is entitled to any enhancement of compensation? M.A.C.A. 415 of 2004 3 7. The specific case of the 3rd respondent/Insurance Company is that the vehicle bearing registration No.KCT 7662 was not insured with them and that the vehicle insured with them has the registration No.KCT 7962 in the name of the 1st respondent. Ext.B1 is the policy and Ext.B2 is the proposal form. In both these documents the number of the vehicle was shown as KCT 7962. It is seen from Exts.A1 and A2, copy of the FIR and copy of the police charge, that the vehicle involved in the accident is an autorickshaw bearing registration No.KCT 7662. Therefore the Tribunal is perfectly justified in holding that the autorickshaw bearing registration No.KCT 7662 had no valid insurance policy at the time of the accident. That being so, respondents 1 and 2, the owner and the driver of the offending vehicle, are jointly and severally liable to pay compensation to the claimant. 8. The next point for consideration is whether the compensation awarded by the Tribunal is excessive. The Tribunal awarded a total compensation of Rs.35,700/-. The break up of the compensation is as under: pain and sufferings Rs.8000/- loss of earnings 3000/- transportation 1000/- damage to clothings 500/- treatment 1000/- M.A.C.A. 415 of 2004 4 permanent disability 16200/- loss of amenities 6000/- 9. Counsel for the claimant sought enhancement mainly for the disability caused. The Tribunal took the monthly income of the claimant as Rs.1500/- and took the percentage of disability as 5% and adopted a multiplier of 18 and awarded Rs.16200/- for the disability caused. Though the doctor has certified in Ext.A15 that the claimant has suffered a disability of 8%, the Tribunal is perfectly justified in taking the percentage of disability as 5% taking into account the nature of the disability caused. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. It follows that the claimant is not entitled to any enhanced compensation. 10. In the light of the above findings, the appeal has to be dismissed. In the result the appeal is dismissed. No costs. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-