IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 MACA.No. 333 of 2004() ---------------------- OPMV.474/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, N. PARAVUR .................... APPELLANT/CLAIMANT: --------------------------------- SELVARAJ. L.P., AGED 29, S/O. PARAMU, LOVEDALE, NEAR KOONAMMAVU MARKET, KOONAMMAVU, PARAVUR-683 518. BY ADV. SRI.V.PREMCHAND SRI.V.TEKCHAND RESPONDENT(S): RESPONDENTS: --------------------------- 1. VARGHESE, S/O. ANTONY, PADAVUPURACKAL VEETIL, CHELLANAM VILLAGE, COCHI-682 008, CHELLANAM.S.KARA. 2. THE ORIENTAL INSURANCE COMPANY MATTANCHERRY BRANCH, MATTANCHERRY, COCHIN-682 002 (POLICE NO.1998/5862) OFFICE CODE-442 100. 3. M.K. RUSHIN, MAMAVELIKKAKATH HOUSE, EROOR P.O., TRIPUNITHURA. ADV. SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 333 OF 2004 ------------------------------------------------------ Dated:JUNE 3, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 474/2000 on the file of the Motor Accidents Claims Tribunal, N. Paravur, challenges the judgment and award of the Tribunal, dated, November 7, 2003 awarding a compensation of Rs.70,000/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these: The claimant was aged 29 at the time of the accident and was earning Rs.4500/- per month as salary as a marketing executive in M/s.Femi Plast Ltd., Aluva. On November 17, 1998 at about 11 a.m. the claimant was riding a motorcycle bearing registration No. KL 7F 2911 along Aluva - Perumbavoor road. When he reached near Zeenath theatre, a bus bearing registration No. KL 7 E 2862 driven by the 1st respondent came at a high speed and knocked him down. The claimant sustained serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 1st respondent. The 1st respondent as the driver, the 2nd respondent as the insurer and the 3rd respondent as the owner of the offending M.A.C.A. 333 OF 2004 2 bus are jointly and severally liable to pay compensation to the claimant. 3. Respondents Nos. 1 and 3, the driver and the owner of the offending bus remained absent and were set ex parte by the Tribunal. The 2nd respondent, insurer of the offending bus, filed a written statement admitting the policy and further contended that the accident occurred due to the negligence on the part of the claimant. 4. PW.1 was examined and Exts.A1 to A9 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting 2nd respondent. On an appreciation of evidence the Tribunal awarded a compensation of Rs.70,000/- with interest at the rate of 9% from the date of petition till realisation and costs. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 1st respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. M.A.C.A. 333 OF 2004 3 7. The claimant sustained the following injuries as revealed from Ext.A4, copy of the wound certificate, issued from the Karothukuzhi Hospital, Aluva: 1. Comminuted fracture of shaft of left femur with dislocation. 2. Injury on left foot and abrasion and injuries on the body. He was admitted on 17.11.1998. Ext.A6 is the certificate issued from the City Hospital, Kochi. 8. The Tribunal awarded a total compensation of Rs.70,000/-. The break up of the compensation awarded is as under:- loss of income for six months - Rs.9,000/- transportation - 1,000/- extra nourishment - 1,000/- attendant's expenses - 3,000/- treatment expenses - 31,000/- loss of amenities and enjoyment in life - 10,000/- pain and suffering - 15,000/- 9. The Counsel for the appellant/claimant sought enhancement of the compensation for the loss of earnings, pain and suffering etc.. It was pointed out that no compensation was awarded for the disability caused. The Tribunal took the monthly income of the claimant as M.A.C.A. 333 OF 2004 4 Rs.1500/- and awarded Rs.9000/- for the loss of earnings. Ext.A8 salary certificate shows that the claimant was working as a marketing executive of M/s. Femi Plast and was earning Rs.4500/- per month. Therefore we feel that his monthly income can be reasonably estimated at Rs.2500/-. That being so, towards loss of earnings for six months, he is entitled to a compensation of Rs.15,000/-. Thus on this count he is entitled to an additional compensation of Rs.6000/-. 10. Counsel for the claimant argued that as the claimant suffered a fracture, he must have suffered disability and for the disability caused, the Tribunal should have awarded some amount as compensation. We are unable to agree. No certificate is produced to show that he has suffered any disability due to the injuries sustained. Admittedly he is still employed and therefore the Tribunal is perfectly justified in not awarding any compensation for the disability caused. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. Thus the claimant is entitled to an additional compensation of Rs.6,000/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 2nd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt M.A.C.A. 333 OF 2004 5 of a copy of this judgment. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-