IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 MACA.No. 303 of 2010() ---------------------- OPMV.455/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETTIONER IN OPMV: ----------------------------------- PRADEEP, S/O. NANDANAN, MADAMBATH HOUSE, VALLAPPADY DESOM, KODAKARA VILLAGE & P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN O.P(MV): ------------------------------------------------ 1. SHEEBA, W/O. BABURAJ, MABADATH HOUSE, KODAKARA.P.O. 2. AMALRAJ, S/O. AMBADATH HOUSE, KAROOR.P.O. 3. NATIONAL INSURANCE CO. LTD., MALIEKKAL BUILDINGS, MAIN ROAD, IRINJALAKUDA. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. ------------------------- M.A.C.A No.303 of 2010 -------------------------- Dated this the 19th February, 2010 J U D G M E N T Barkath Ali,J. In this appeal under Section 173 of the Motor Vehicles Act, the claimant in O.P (MV) 455/06 challenges the Judgment and Award of the Motor Accidents Claims Tribunal, Irinjalakuda dated October 15, 2009 awarding a compensation of Rs.1,00,100/- for the loss caused to the claimant on account of the injury sustained by him in a motor accident. 2. The facts in brief are these: The appellant/claimant was working as Clerk in a private firm and was aged 22. On 15.9.2005, while the appellant was pillar riding on a a motorcycle bearing Reg. No.KL- 8/AC 1675 which was ridden by the 2nd respondent, when the motor cycle reached at Kodakara, the 2nd respondent lost control over the vehicle, as a result of which, the claimant fell down and sustained injuries. According to the claimant, the accident occurred due to M.A.C.A No.303 of 2010 2 rash and negligent driving of the motorcycle by 2nd respondent. First respondent as the owner,, 2nd respondent as the rider and 3rd respondent as the insurer of the motorcycle are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and rider of the offending motor cycle remained absent before the Tribunal and they were set ex parte. Third respondent, insurer of the offending vehicle, filed a written statement admitting the policy 4. On the side of the claimant, Exts.A1 to A7 were marked and on the side of the contesting 3rd respondent copy of policy was marked as Ext.B1. On an appreciation of evidence, the Tribunal awarded a compensation of Rs.1,00,100/-. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 2nd respondent is not challenged in this M.A.C.A No.303 of 2010 3 appeal. Therefore, the only question to be decided is whether the claimant is entitled to any enhanced compensation. 6. The appellant/claimant sustained a fracture of right femur and distal end of right tibia. Ext.A3 is the wound certificate and Ext.A4 is the discharge certificate issued from the St.James Hospital, Chalakudy showing that he has sustained a compound Type I open fracture of the supra condylar of right femur and compound fracture of the distal end of right tibia and fibula. Ext.A6 disability certificate shows that he has suffered a limb disability of 33% and whole body disability of 23%. The Tribunal awarded compensation as follows: Medical expenses - Rs.21,250/- Transportation expenses - 1,000 For hospitalisation - 3,000 Loss of earning - 10,000 Pain and suffering - 17,000 Loss of amenities - 5,000 Disability caused - 42,850 ----------------- Total 1,00,100 ======= M.A.C.A No.303 of 2010 4 7. The counsel for the appellant/claimant disputed only the quantum of compensation granted under the head disability. He would argue that the percentage of disability assessed by the Tribunal is very low and that the same should have been assessed at 23% as certified by the Doctor in Ext.A6. We are not inclined to agree. In Ext.A6, the Doctor has assessed the percentage of disability as 33% for that particular limb and the whole body disability as 23%. Taking into consideration the fact that the claimant was affected by polio and that the injury sustained has only aggravated his disability, the Tribunal assessed his disability as 14% and assessing his income as Rs.18,000 per annum awarded a compensation of Rs.42,850/- for the disability caused. No evidence was adduced by the claimant by examining the Doctor, who issued A6 to show that the claimant has suffered a disability of more than 14%. Therefore, we find no illegality in the said finding of the Tribunal and hold that the percentage of disability assessed by the Tribunal as well as the compensation awarded is reasonable. The compensation awarded by the M.A.C.A No.303 of 2010 5 Tribunal under other heads is not questioned before us. 8. Taking into account the nature of the injury sustained, we feel that the compensation awarded by the Tribunal is just and reasonable. We find no reason to interfere with the award passed by the Tribunal. That being so, the appeal has to be dismissed. In the result, we find no merit in the appeal and the same is hereby dismissed. In the circumstances the parties shall bear their own costs. A.K.BASHEER ,JUDGE P.Q.BARKATH ALI,JUDGE ma M.A.C.A No.303 of 2010 6 M.A.C.A No.303 of 2010 7