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 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 MACA.No. 426 of 2009() ---------------------- OPMV.1887/2002 of PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER IN O.P(MV) ----------------------------------- P.SURENDRAN, S/O.RAMAN, AGED 30 YRS, THEKKEPALLIKAYIL HOUSE, P.O.RAMANATTUKARA, KOZHIKODE. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): RESPONDENTS IN O.P.(MV) -------------------------------------- 1. K.SAIDALAVI, S/O.MOIDEENKUTTY,KONNOTH HOUSE, AREEKODE, MALAPPURAM DISTRICT. 2. SAINUDHEEN, S/O.HASSANKUTTY,AGED 30 YRS, KUNNATH HOUSE, AREEKODE, KOZHIKODE. 3. UNITED INDIA INSURANCE CO.LTD, BRANCH OFFICE, ARAFA BUILDING, COURT ROAD, MANJERI. ADV. SRI.PMM.NAJEEB KHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.426 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2010 JUDGMENT Barkath Ali, J. The appellant is the claimant in O.P.(MV)No.1887/2002 on the file of Principal Motor Accidents Claims Tribunal, Kozhikode. In this appeal, the claimant challenges the judgment and award of the Tribunal dated February 5, 2008. The Tribunal rejected his claim for compensation under Section 166 of Motor Vehicles Act, but awarded Rs.25,000/- only as compensation under Section 140 of the Act under no fault liability for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The claimant sustained the following injuries in the said accident that occurred on April 22, 2002 at Kottappuram Angadi : Fracture shaft of femur ( L) 1/3rd, lacerated wound on right hand, multiple abrasion all over the body. 3. The accident happened while he was travelling in a bus bearing Reg.No.KL.10/C 7866, it dashed against a car bearing Reg.No.KL.9/H 1035. Alleging negligence against the first MACA.No.426/2009 2 respondent, the driver of the bus, the claimant filed the O.P. before the Tribunal claiming a compensation of Rs. 2,00,000/-. 4. Respondents 1 and 2, the owner and the driver of the offending bus remained absent before the Tribunal. The third respondent, the insurer of the offending bus filed a written statement admitting the policy, but disputed the liability. 5. PW1 was examined and Exts.A1 to A4 series and Ext.C1 were marked on the side of the claimant. No evidence was adduced on the side of the contesting third respondent. On an appreciation of evidence, the Tribunal found that the claimant has failed to prove that the accident occurred due to the negligence of the second respondent, the driver of the bus and rejected his claim for compensation, but awarded only a compensation of Rs.25,000/- under Section 140 of the Act. The claimant has now come up in appeal challenging the above finding of the Tribunal. 6. Heard the counsel for the claimant and the counsel for the Insurance Company. 7. The following points arise for consideration : MACA.No.426/2009 3 1) Whether the finding of the Tribunal that the claimant has failed to prove that the accident occurred due to the negligence of the second respondent, the driver of the bus involved in the accident can be sustained ? 2) Whether the claimant is entitled to any compensation; if so, what is the quantum ? Point No.1 8. The Tribunal has found that there are no document to show that second respondent was the driver of the bus and that there is no evidence to show that the accident occurred due to the negligence on the part of the driver of the bus. The said finding of the Tribunal cannot be sustained for more reasons than one. PW1, the claimant has testified before the Tribunal regarding this aspect. Respondents 1 and 2 remained absent before the Tribunal. The third respondent, the insurer of the bus did not dispute the fact that respondents 1 and 2 were the owner and driver of the offending bus at the time of accident. That apart, Rule 376 of Motor Accidents Claims Tribunals Rules provides that the Insurance Company has to produce all necessary documents before the Tribunal for enabling the Tribunal to pass a just MACA.No.426/2009 4 and reasonable award. No documents were produced by the Insurance Company to show that respondents 1 and 2 were not the owner and the driver of the offending bus at the time of the accident. Further, PW1 has also testified regarding the negligence on the part of the driver of the bus. Therefore, the finding of the Tribunal that there is no evidence to show that second respondent was the driver of the offending bus and that claimant has not established negligence on the part of the second respondent cannot be sustained and we hold that first respondent was the owner, second respondent was the driver of the offending bus and third respondent was the insurer of the offending bus at the time of the accident and that the accident occurred due to the negligence of the second respondent. 9. The next question for consideration is what is the quantum of compensation the claimant is entitled to. The claimant sustained the injuries mentioned above in the accident. He was admitted in the hospital on April 22, 2002 and was discharged on April 29, 2002. Open reduction and internal fixation were done. Ext.C1, the certificate of disability, shows that he has suffered a permanent disability of 5%. MACA.No.426/2009 5 Taking into consideration the nature of the disability mentioned therein, we feel that the percentage of disability certified by the Medical Board in Ext.C1 can be accepted. According to the claimant, he was a driver earning Rs. 4,000/- per month. The fact that he was a driver by profession is not seriously challenged. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 3,000/-. He was aged 24 at the time of the accident. Therefore, the proper multiple that can be adopted in this case is 18. Thus calculated for the disability caused, claimant is entitled to a compensation of Rs. 32,400/- ( 5% x 3000 x 12 x 18). 10. Taking into consideration the nature of the injuries sustained by the claimant and the period of treatment he has undergone, we feel that a compensation of Rs. 10,000/- for pain and suffering endured, Rs. 10,000/- for loss of amenities and enjoyment in life and Rs. 6,000/- for treatment expenses would be reasonable. The claimant will also be entitled to interest @ 7.5% interest from the date of petition till realisation and proportionate cost. 11. In the result, the claimant is found entitled to a MACA.No.426/2009 6 compensation of Rs. 58,400/- with interest @ 7.5% from the date of petition till realisation and proportionate cost. Rs.25,000/- already received by the claimant has to be deducted. The third respondent, the insurer of the offending vehicle, shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.426/2009 7