IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 MACA.No. 1811 of 2005() ----------------------- OPMV.82/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): PETITIONER. ----------------------------------- LALU, S/O.THOMAS ANTONY, AGED 41 YEARS, VALOLIKKAL HOUSE, KADAMBOOR POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENT(S): RESPONDENTS. --------------------------- 1. THITHU MOHAN, S/O.MOHAN, SAROVAR, NEAR RAILWAY HOSPITAL, AKATHETHARA, PALAKKAD DISTRICT. 2. THE NEW INDIA ASSURANCE COMPANY LIMITED, PALAKKAD. ADV. SRI.KKM.SHERIF FOR R2 SRI.P.M.KUNJIMOIDEENKUTTY FOR R2 SRI.P.A.MOHAMMED ASHROF FOR RR2 SRI.LAL K.JOSEPH FOR R2 SRI.A.A.ZIYAD RAHMAN FOR R2 SRI.JACOB SEBASTIAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2011, ALONG WITH MACA NO. 2171 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. Nos. 1811 and 2171 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 7th day of December, 2011 COMMON JUDGMENT Ramkumar, J. In these appeals filed under section 173 of the Motor Vehicles Act, 1988 (M.V.Act for short) the common appellant challenges the award of the Motor Accidents Claims Tribunal, Ottapalam in O.P.(MV) Nos.29 and 82 of 2004. 2. The accident took place on December 8, 2003 at 5 p.m. The appellant was driving his goods auto-rickshaw bearing registration No.KL 9K 2720 from east to west from Palakkad to Pathiripala. While so, a motor cycle bearing registration No.KL 9H 1122, driven by the 1st respondent before the Tribunal, came from the opposite direction and dashed against the goods auto-rickshaw, driven by the appellant, resulting in damages to the goods auto-rickshaw and injuries to the appellant who was then aged 39 years. MACA 1811/2005 & con. case 2 3. According to the appellant, he was the owner-cum- driver of the goods auto-rickshaw in question and earning a monthly income of Rs.15,000/-, for which no satisfactory evidence was adduced by him before the Tribunal. He sustained 6% disability, as revealed by Ext.A8 disability certificate. The monthly income of the appellant was fixed at Rs.3,000/- by the Tribunal. Adopting 16 as the multiplier and accepting the percentage of disability as 6%, the Tribunal fixed a sum of Rs.34,560/- towards compensation for continuing disability as against the claim of Rs.50,000/-. As against the claim of partial loss of earnings by the appellant at Rs.60,000/- for four months at the rate of Rs.15,000/- per month, the Tribunal awarded Rs.3,000/- being one month's salary. Since the Tribunal disposed of the matter under section 163A of the M.V. Act, the medical expense was limited to Rs.15,000/-, as against the claim of Rs.40,000/- towards past expenses and another Rs.40,000/- towards future expenses. The Tribunal ignored as not relevant the medical bills totalling to Rs.29,065/-. No MACA 1811/2005 & con. case 3 compensation was given for transport to hospital, extra- nourishment, damage to clothing etc. The Tribunal thus fixed a total compensation of Rs.57,560/-. Aggrieved by the said award, the appellant has approached this Court by filing M.A.C.A.No.2171/2005. The other appeal namely, M.A.C.A. No.1811/2005 is filed by the appellant against the dismissal of his claim of Rs.15,000/- by way of property damage. 4. We heard learned counsel appearing for the appellant and learned counsel appearing for the 2nd respondent Insurance Company. 5. The liability of the insurer is admitted by the 2nd respondent. According to the 2nd respondent, since the police had charge sheeted the appellant in the criminal case, the appellant was responsible for the accident. That is presumably the reason why the Tribunal proceeded to fix the compensation under section 163A of the M.V. Act. 6. It is true that the police has charge sheeted the appellant in the criminal case. But we are at loss to MACA 1811/2005 & con. case 4 understand as to how the police could arrive at such a conclusion. The appellant was driving the goods auto- rickshaw from east to west along the National Highway having a total width of 8.5 metres from the tarred portion. The exact place of occurrence is located by the police at a point 50 cm. to the north of the southern tar end of the road. The appellant who was driving from east to west was therefore on the proper side. Admittedly, the motor cycle driven by the 1st respondent was carrying from the opposite direction. This means that the motor cycle evidently crossed over to the wrong side of the road to have a head on collision with the goods auto-rickshaw, which was on the proper side. This reinforces the contention of the appellant that the police were charge sheeting the appellant merely because the vehicle driven by the appellant was bigger than the motor cycle. Moreover, no evidence was adduced by the respondents to show that the accident happened due to the rash and negligent driving of the goods auto-rickshaw by the appellant. The road is a straight road having MACA 1811/2005 & con. case 5 sufficient width allowing the motorists to drive their vehicles in reasonably good speed. We are therefore unable to agree with the Tribunal that the accident took place on account of the negligence of the appellant. It is well settled that the conclusion reached by the police or even the finding entered by the criminal court is not binding on the Motor Accident Claims Tribunal, which has to arrive at its own finding regarding the aspect of negligence. The Tribunal also went wrong in disposing of the application under section 163A of the M.V. Act. The application should have been disposed of under section 166 of the M.V. Act, which was the provision of law involved by the appellant. 7. There is no dispute that the appellant is the owner- cum-driver of the goods auto-rickshaw. Hence, the Tribunal was not justified in fixing his monthly salary at Rs.3,000/- as against his claim of Rs.15,000/-. Considering the facts and circumstances of the case, we fix his monthly income at Rs.4,000/-. On that basis, the loss of earning for two months will come to Rs.8,000/-, which is awarded as against MACA 1811/2005 & con. case 6 Rs.3,000/- awarded by the Tribunal. 8. Regarding the medical expenses, admittedly the bills produced are totalling to Rs.29,065/-. We feel that the said amount could be awarded. Accordingly, as against Rs.15,000/- awarded by the Tribunal, we award a sum of Rs.29,065/- towards medical expenses. 9. The injuries sustained by the appellant was rupture of patella tendon involving a surgery and installing an implant. His initial hospitalization at Valluvanad Hospital from 8-12-2003 to 15-12-2003. Subsequently, he was again hospitalized from 25-11-2004 to 29-11-2004, during which period the implant was removed after a surgery. He has sustained 6% disability which has been accepted by the Tribunal also. Under these circumstances, as against a sum of Rs.5,000/- awarded by the Tribunal by way of pain and suffering, we fix a sum of Rs.10,000/- on this count. Adopting his monthly income as Rs.4,000/- and accepting his disability as 6% and adopting 16 as the multiplier, the total compensation payable for continuing and permanent MACA 1811/2005 & con. case 7 disability is Rs.46,080/-. 10. No compensation is seen awarded by the Tribunal for transport to hospital, extra-nourishment and damage to clothing. Considering the nature of the injuries sustained by the appellant, a compensation of Rs.1,000/- for transport to hospital, Rs.500/- for extra nourishment and Rs.500/- for damage to clothing and articles is granted. 11. No compensation was awarded for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the appellant and the disability caused, a compensation of Rs.10,000/- for loss of amenities and enjoyment in life is granted. 12. We therefore fix a total compensation of Rs.1,05,145/-. Deducting the amount awarded by the Tribunal, the enhanced compensation due to the appellant will be Rs.47,585/- (rupees forty seven thousand five hundred and eighty five only), which shall bear interest @ 7.5% per annum from the date of petition till realization. 13. In the result, M.A.C.A No.2171/2005 is allowed in MACA 1811/2005 & con. case 8 part as above. M.A.C.A. No.1811 of 2005:- 14. What now survives for consideration in this appeal is the claim of Rs.15,000/- made by the appellant towards property damage. Since the Tribunal found that the appellant was negligent, no amount was awarded by way of property damage. 15. The learned counsel for the 2nd respondent would contend that the appellant's vehicle was insured with the same Insurance Company and the appellant as PW1 conceded that he has made a claim, but the appellant did not adduce satisfactory evidence to show whether he had made a claim for the damage to the goods auto-rickshaw before his insurer and what was the result of the claim. The appellant examined as PW1 would submit that even though he had made a claim, no amount has been granted by his insurer. Except making a claim of Rs.15,000/- he did not produce any survey report or other acceptable evidence to substantiate his claim. MACA 1811/2005 & con. case 9 16. However, having regard to the fact that Ext.A3 M.V.I. report shows damage to his goods auto-rickshaw such as breaking of wind shield glass, head light, plastic grill, cabin and door, etc., and since there is no evidence forthcoming from the insurer to show that he had claimed any amount by way of property damage, we are of the view that a sum of Rs.5,000/- by way of property damage would suffice. Accordingly, M.A.C.A. No.1811/2005 is allowed in part granting an award of Rs.5,000/- by way of property damage which will carry interest @ 7.5% per annum from the date of petition till realization. In the result, these appeals are allowed in part as above. No costs. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn.