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 2ND JUNE 2010 / 12TH JYAISTHA 1932 MFA.No. 417 of 2002() ------------------------------- OP(MV).2139/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): CLAIMANT ---------------------- DEVASSIA K.C., THENGUMTHOTTAM HOUSE, PARATHODE P.O., PAZHAVATHADAM. BY ADV. SRI.MATHEW ABRAHAM RESPONDENT(S): RESPONDENT ------------------------- 1. CHACKO ABRAHAM, S/O.MATHEW, THENGUMPALLIYIL, NEDUMKUNNAM P.O., KOTTAYAM DISTRICT. 2. ALEX CHERIAN, S/O.VARGHESE CHERIAN, MANGALATHU HOUSE, NAMMOODU P.O., HARIJAN COLONEY BHAGAOM, MADAPPALLY. 3. THE ORIENTAL INSURANCE CO LTD., BRANCH OFFICE, CHENGANACHERRY. 4. A.VIJAYAN NAIR, S/O.AYYAPPAN NAIR, CHITTATHU HOUSE, PANAMATOM P.O., KOORALI, PONKUNNAM. 5. K.K.THOMAS @ ANIL, KUMBACKAL, PONKUNNAM. 6. KERALA STATE INSURANCE DEPARTMENT, DISTRICT INSURANCE OFFICE, RUBBER BOARD OFFICE, KANJIKUZHY. M.F.A. NO. 417/2002 7. THE NEW INDIA ASSURANCE CO. LTD., CHANGANACHERRY, REPRESENTED BY ITS BRANCH NAGAR. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) R6 BY GOVERNMENT PLEADER SRI.I.V.PRAMOD R7 BY ADV. SRI.KKM.SHERIF THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.F.A. No. 417 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 2nd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.2139 of 1995 of the Motor Accidents Claims Tribunal, Pala challenges the judgment and award of the Tribunal dated September 26, 2001 awarding a compensation of Rs.56,250/- 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 45 at the time of the accident and used to earn Rs.2,000/- per month as a Rubber Tapper. On December 5, 1993 at about 12 O’ Clock in the noon the claimant was traveling in a bus bearing registration No.KEK 2435 along K.K. Road. At that time another bus bearing registration No. KRO 8393 came at a high speed from the opposite side and collided head on with the bus in which the MFA 417/2002 2 claimant was traveling. The claimant and other passengers sustained injuries in the accident. According to him, respondents 1 to 6 as the owners, drivers and insurers of the both the buses are jointly and severally liable to pay compensation to the claimants, as the accident occurred due to negligence on the part of the drivers of both the buses. Subsequently, New India Assurance Company Ltd. was impleaded as addl. 7th respondent in the O.P. 3. Respondents 1, 2 and 7 are the owner, driver and insurer of the bus bearing registration No.KRO 8393. Respondents 4, 5 and 6 are the owner, driver and insurer of the bus bearing registration No.KEK 2435. 4. Before the Tribunal respondents 1, 2 and 5 remained absent and were set ex parte by the Tribunal. The third respondent filed written statement, contending that the vehicle bearing registration No.KRO 8393 was insured with the New India Assurance Company, which was later impleaded as addl. 7th respondent. Respondents 4 and 6 did not file any written statement. The seventh respondent MFA 417/2002 3 filed written statement, admitting the policy. 5. This O.P. was jointly tried along with other Original Petitions filed by the injured persons and a common award was passed. 6. PWs.1 to 4 were examined and Exts. A1 to A23 were marked on the side of the claimant. No evidence was adduced on the side of the contesting respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence of the driver of bus bearing registration No. KRO 8393 and awarded a compensation of Rs.56,250/- with interest at the rate of 9% p.a. from the date of petition till realization against the seventh respondent. The claimant has now come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 7. Heard the learned counsel for the appellant and learned counsel for respondent Nos.3, 6 and 7. 8. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence MFA 417/2002 4 on the part of the first respondent, driver of bus bearing registration No.KRO 8393 is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 9. The claimant sustained the following injuries as revealed from Ext.A7 copy of the wound certificate, Ext.A8 discharge card and Ext.A9 disability certificate:- 1) Lacerated wound on the dorsum of right hand 3 x 1 c.m. 2) Lacerated wound on the right index finger 3 x 1 cm. 3) Lacerated wound on the right middle finger 3 x 1 c.m. 4) Lacerated wound root of right ring finger 3 x 1 c.m. He was admitted on December 5, 1993 and was discharged on December 24, 1993. Ext.A9 certificate of disability shows that the claimant has now the following disabilities:- 1) Horizontal scar with fibrosis on the dorsum of right palm in relation to 2nd, 3rd, 4th and 5th fingers right. MFA 417/2002 5 2) Vertical scar with fibrosis on the extensor aspect of right index, middle and ring fingers. 3) Flexion deformity of 10 degree at terminal interphalangeal joint right index finger. 4) Restricted flexion about 10 degree at meta carpa phalangeal and inter phalangeal joints of 2nd, 3rd, 4th and 5th fingers right. 5) Absence of grip to hold a thing firmly in the right palm due to restricted flexion at metacarpa phalangeal, interphalangeal joints of 2nd, 3rd, 4th and 5th fingers right. The doctor assessed the percentage of disability as 10%. 10. The Tribunal awarded a total compensation of Rs.56,250/-. Break up of the compensation awarded is as under:- Loss of earnings : Rs. 5,000/- Transport to hospital : Rs. 2,000/- extra nourishment, damage to clothing and articles. Treatment and medicine : Rs. 1,250/- and bystander's expenses. Pain and suffering : Rs. 8,000/- Loss of earning power : Rs. 15,000/- and enjoyment of life. Disability caused : Rs. 25,000/- ------------------ Total : Rs. 56,250/- MFA 417/2002 6 ======= 11. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused and loss of earning power. He has also pointed out that no compensation was awarded for the loss of amenities and enjoyment in life. 12. For the permanent disability caused, the Tribunal awarded a compensation of Rs.25,000/-. The claimant being a Rubber Tapper, aged 45, we feel that the injury sustained by him must have caused serious disability. Therefore, we feel that a compensation of Rs.40,000/- would be reasonable for the disability caused. Therefore, for the permanent disability caused the claimant is entitled to an additional compensation of Rs.15,000/-. However, there is another aspect. The Tribunal again awarded a compensation of Rs.15,000/- for loss of earning power, which the claimant is not entitled to. 13. No compensation was awarded by the Tribunal for the loss of amenities and enjoyment in life. taking into MFA 417/2002 7 consideration the nature of the injuries sustained , we feel that a compensation of Rs.10,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 14. In the result, the claimant is entitled to an additional compensation of Rs.10,000/- . He is entitled to interest @ 9% from the date of petition till realization. The seventh respondent, being the insurer of the offending vehicle, shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn MFA 417/2002 8 A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 417 of 2002 =~=~=~=~=~=~=~=~=~=~=~= JUDGMENT 2 nd day of June, 2010