IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 MACA.No. 519 of 2010(D) ----------------------------------- (O.P(MV).NO.1286/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM) .................... APPELLANT/PETITIONER: ------------------------------------- K.C. THOMAS, S/O. CHACKO OOMMAN, KALATHOORAZHIKAM, HOUSE NO. 245, CHITTATINKARA, VATTIYOOR KAVU.P.O, THIRUVANANTHAPURAM. BY ADVS. SRI.C.VALSALAN, SRI.GHOSH YOHANNAN, SRI.K.RAKESH ROSHAN, SMT.THUSHARA.V. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. P. SAIDALAVI, S/O MAMMOTH, MARATHU HOUSE, OZHUKUR, MONGAM, ERANADU, MALAPPURAM. 2. THE SECRETARY, FAMILY WELFARE, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. MUHAMMED SHAH, S/O. ALAVIKUTTY, VELUTHODU VEEDU, OZHUKUR, MORAYOOR VILLAGE, ERANADU, MALAPPURAM. M.A.C.A. NO. 519/2010-D: 4. VIJAYAKUMAR, S/O. JANARDHANAN NAIR, PURNAMI, CLIFF HOUSE COMPOUND, NANTHANCODE, THIRUVANANTHAPURAM. 5. DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., ST. JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM. 6. THE DIRECTOR, KERALA STATE INSURANCE DEPARTMENT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A No. 519 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 19th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV) No.1286 of 2002 of Motor Accidents Claims Tribunal, Thiruvananthapuram challenges the judgment and award of the Tribunal dated July 27, 2009, awarding a compensation of Rs.1,16,830/- for the loss caused to him 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 is the Private Secretary to the then Health Minister of the Kerala State, earning Rs.11,000/- per month and was aged 48 at the time of the accident. On January 1, 2002 at 4.40 p.m. the claimant was travelling along the then Health Minister of the Kerala State in a car bearing number Kerala State No.14. When they reached MACA 519/2010 2 near 16th mile, Thonnakkal-Mangalapuram in the Attingal - Thiruvananthapuram National Highway, it collided head on with a lorry bearing registration No.KL-13 B 3877. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of drivers of both the vehicles. Respondents 1, 3 and 5, the owner, driver and insurer of the offending lorry involved in the accident and respondents 2, 4 and 6 as the owner, driver and insurer of the car are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.7 lakhs. 3. Respondents 1 and 2 remained absent and were set ex parte by the Tribunal. Respondents 3 and 4 also remained absent. Respondents 5 and 6, insurer of the respective vehicles, filed separate written statement, admitting the policy, but denying the liability. 4. The O.P.(MV) No.1286 of 2002 was tried jointly along with other two connected Original Petitions i.e., O.P. MACA 519/2010 3 (MV) Nos.1490 and 1645 of 2002, as all those cases arose out of the same incident. 5. Evidence was recorded in O.P. No.1286 of 2002. Exts.A1 to A24 were marked on the side of the petitioners by the Tribunal. No evidence was adduced by contesting respondents. The Tribunal, on an appreciation of evidence, found that the accident occurred due to negligence on the part of drivers of both the vehicles and awarded a compensation of Rs.1,16,830/- with interest at 7.5 % p.a. from the date of petition till realization. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the drivers of both the vehicles 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 Tribunal awarded a total compensation of MACA 519/2010 4 Rs.l,16,830/-. The break up of the amount awarded is as under : Loss of earning : R.14,000/- Transportation expense : Rs.1,000/- Medical expense : Rs.2,000/- Extra nourishment : Rs.1,500/- By-stander's expenses : Rs.1,600/- Damage to clothing : Rs.500/- Pain and sufferings : Rs.20,000/- Permanent disability : Rs.50,820/- resulting in loss of earning. Loss of amenities : Rs.25,410/- -------------------- Total : Rs.1,16,830/- ======== 8. The learned counsel for appellant/claimant sought enhancement of compensation for disability caused, medical expenses, for extra-nourishment and loss of amenities and enjoyment in life. 9. The claimant in this case sustained the following injuries:- 1) Lacerated wound 2 x 2 c.m. on the right elbow. 2) Fracture shaft of right humerus. 3) Fracture medial epicondyle right side. MACA 519/2010 5 Ext.A7 is the wound certificate and Ext.A8 is the copy of the reference card issued from the hospital. Ext.A8 shows that claimant has sustained fracture of ribs left side also and open reduction and internal fixation for the fracture of right humerus with plate and bone grafting was done. Ext.A11 certificate of disability shows that the claimant has now a permanent disability of 7%. The Tribunal took the disability as 4%, which, according to the learned counsel for the claimant, is very low. Ext.A12 another disability certificate issued by Asst. Professor of Orthopaedics, Medical College Hospital, Thiruvananthapuram shows that the claimant has permanent disability of 7%. 10. The Tribunal took monthly income of the claimant as Rs.2,500/- and adopting a multiplier of 17 awarded a compensation of Rs.50,820/- for the disability caused. The learned counsel for the appellant/claimant has argued that Ext.A22 certificate issued by the Sub Treasury Officer, Sub Treasury, Thiruvananthapuram shows that the salary of the claimant as Rs.14,875/- and the Tribunal went wrong in MACA 519/2010 6 calculating the monthly income of the claimant as Rs.3,500/-. There is no merit in the above contention. The accident occurred on January 1, 2002. Ext.A22 is seen issued in August, 2004. Further the petitioner is still employed. Therefore, the Tribunal is perfectly justified in fixing his monthly income as Rs.3,500/- for the purpose of computing compensation for the disability and awarding a compensation of Rs.50,820/-. Therefore, the claimant is not entitled for any enhancement under this head. 11. The learned counsel for the appellant sought enhancement of compensation for medical expenses. The Tribunal awarded Rs.2,000/- under this head, which, according to the learned counsel for the appellant, is very low. There is no substance in the above contention. The petitioner is a Government employee and he was treated at Government Medical College Hospital, Thiruvananthapuram. Therefore, he would have got reimbursement of the entire treatment expenses. That being so, the Tribunal is right in awarding Rs.2,000/- for MACA 519/2010 7 medical expenses. Therefore, on this count also the claimant is not entitled to any enhancement. 12. As regards the compensation awarded under other heads also, we find the same to be reasonable and we are not disturbing the same, particularly in view of the fact that the claimant is still employed and getting a better salary. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed. In the circumstances, the parties shall bear their own costs. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.