IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 MACA.No. 358 of 2003() ---------------------- OPMV.245/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANT/IST PETITIONER -------------------------------------- GIRISH KUMAR, AGED 21 YEARS, S/O.K.KRISHNAN, KOLAMKULAM, KARINDALAM VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA KRISHNAMOORTHY RESPONDENT(S): RESPONDENTS -------------------------- 1. C.KRISHNAN, AGED 49 YEARS, S/O.KUNHIKANNAN, CHEMMANADAM VEEDU, KUTTAMATH, CHERUVATHUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. E.J.JOY, AGED 45 YEARS, S/O.JOHN, EZHAVATH HOUSE, POODAMKALLU, RAJAPURAM POST, HOSDURG TALUK. 3. THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY, KANHANGAD, RAHMATH SHOPPING COMPLEX, KANHANGAD. ADV. SRI.M.THAMBAN FOR R1 SMT.T.SUDHAMANI FOR R1 SRI.T.K.VIPINDAS FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.358 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.245/1998 of Motor Accidents Claims Tribunal, Kasargode challenges the judgment and award of the Tribunal dated December 16, 2002 awarding a compensation of Rs. 81,500/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant is a boy aged 13. On November 22, 1996 at about 8 p.m., he was pillion riding on the motor bike bearing Reg.No.KL 14/A- 3066 ridden by his father, who is the claimant in O.P.(MV) No.242/1998 before the Tribunal, from Cheruvathur to Nileswar. When they reached near Cheruvathur junction, a jeep bearing Reg.No.KBT.9638 driven by the first respondent came at a high speed and dashed against the motor bike of the claimant. Claimant sustained MACA.No.358/2003 2 serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending jeep by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. 3. First respondent, the driver of the offending jeep remained absent before the Tribunal. Second respondent though entered appearance did not file any written statement. The third respondent, the insurer of the offending vehicle filed a written statement admitting the policy and further contended that there was also negligence on the part of the rider of the motor bike. 4. This O.P. was jointly tried along with O.P.(MV) No.242/1998 and a common award was passed by the Tribunal. PW1 was examined and Exts.A1 to A11 series were marked before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by first respondent and awarded a compensation of Rs. 81,500/-. MACA.No.358/2003 3 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 first 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. 7. The claimant sustained the following injuries as revealed from Ext.A5, the copy of the wound certificate issued from the hospital and Ext.A7, the discharge card issued from the hospital. 1. Lacerated wound over right leg 3” x 1” with deformity over the right leg. 2. X-ray revealed communited fracture of the right tibia and Fibula middle 1/3rd. 8. He was admitted in the hospital on 23-11-1996 and was discharged on 6-1-1997. Ext.A7, the certificate of disability issued by the doctor shows that he has a permanent disability of 20% as he has MACA.No.358/2003 4 stiffness of his right ankle with hardly 20 degrees of free movement and 1 cm. shortening. 9. The Tribunal awarded a total compensation of Rs.81,500/-. The break up of the compensation awarded is as under : Medical bill - Rs. 25,000/- Bystander expenses - Rs. 1,500/- Pain and suffering - Rs. 15,000/- Disability - Rs. 30,000/- Inconvenience and loss of enjoyment of life - Rs. 10,000/- 10. Counsel for the claimant sought enhancement of the compensation for the disability caused, for pain and suffering and loss of amenities and enjoyment of life. It is pointed out by the counsel for the claimant that no compensation was awarded for future treatment expenses. 11. The Tribunal awarded a compensation of Rs. 30,000/- for the disability caused. Ext.A8, the certificate of disability produced by him shows that at present he has stiffness to his right ankle with hardly MACA.No.358/2003 5 20 degrees of free movement and that there was 1 cm. shortening. The doctor has certified the disability as 20%. The Tribunal did not accept the same as the doctor who issued the same was not examined. But the Tribunal has noted his deformity on the lower limb below the knee. Since the claimant is only a boy aged 13, we feel that the compensation awarded by the Tribunal for the disability caused is just and reasonable. 12. The Tribunal awarded Rs. 10,000/- for the inconvenience and loss of enjoyment in life. Taking into consideration the nature of the injury sustained and the disability caused to the claimant, we feel that a compensation of Rs. 15,000/- would be reasonable on this count. Thus on this count, the claimant is entitled to an additional compensation of Rs. 5,000/-. 13. For pain and suffering endured, Rs. 15,000/- was awarded by the Tribunal which appears to be very low. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 25,000/- would be reasonable for the pain and suffering endured by the claimant. Thus on this count, the claimant is entitled to an additional compensation of Rs. 10,000/-. MACA.No.358/2003 6 14. There is another aspect in this case. The injury sustained by the claimant shows that he has to undergo further treatment in future for which we feel that a compensation of Rs. 10,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 15. In the result, the claimant is found entitled to an additional compensation of Rs. 25,000/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being 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 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 sv. MACA.No.358/2003 7 MACA.No.358/2003 8