IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 MFA.No. 1357 of 2001(D) ----------------------- MVOP.2150/1998 of SPL.COURT FOR EC ACT CASES &MACT,TSR .................... APPELLANT/PETITIONER: ------------------------------------ VISWANATHAN, S/O. SUBBATTAN ACHARI ALIA CHELLAPPAN ACHARI, JYOTHI NIVAS 19/442, CHALAPPURAM, CALICUT P.O., KERALA. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. P.T. HARRIS, S/O. IMBICHIAHAMED, NEW PALAKANDY HOUSE, KALLAI P.O., CALICUT. 2. SUMESH, S/O. SUBRAMANIAN, ELITE MOSKKD, NELLIYATTI HOUSE, MELETHODI DESOM, CHELAMBRA VILLAGE, THIRURANGADI TALUK. 3. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, P.B. NO. 59, WHITE LINE BUILDING, KALLAI ROAD, CALICUT. 4. PHILIP P.K., S/O. KUTTAPPAN, PARAMBANATH MALAYIL, KATTACHIRA P.O., KOTTAYAM. 5. RAMAN. O., S/O. THER, OKALAVU, KALLAR, HOSDURG TALUK, KASARAGOD P.O. 6. THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, SAKTHI MAHAL, BANK ROAD, KASARAGOD ADV. SRI.T.K.VIPINDAS FOR R4&5 ADV. SRI.M.JACOB MURICKAN FOR R6 ADV. SMT.P.A.REZIYA FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 29.6.2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 1357 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of June, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner in O.P. (M.V.) No. 2150 of 1998 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents 1 to 6 are respondents 1 to 6 in that petition. That is a petition filed under Section 166 of the Motor Vehicles Act. 2. The allegation is that on 29.6.1998 at about 3.30 a.m. the petitioner was travelling in a car bearing No.KL-11/444 along Trichur - Kunnamkulam road and when the car reached at Kaipparambu, the car went and hit against a jeep bearing No. KL 5D/9684, which was parked on the side of the road without parking lights switched on. In the accident the petitioner M.F.A.No. 1357 of 2001 2 sustained serious injuries. The accident occurred due to the negligence of the drivers of both the vehicles involved in the accident. 3. The first respondent was the registered owner and the second respondent was the driver of the car. The third respondent was the Insurer of the car and 4th respondent was the registered owner of the jeep. Fifth respondent was the driver of the jeep. 6th respondent was the Insurer of the jeep. 4. Before the Claims Tribunal, respondents 1 and 2 were ex parte. The third respondent filed written statement admitting the policy of the car and contends that the accident was due to the negligence of the driver of the jeep and the compensation claimed is excessive. The 4th respondent remained ex parte. The 5th respondent filed written statement contending that the accident was due to the negligence of the second respondent. 6th respondent filed written statement admitting the policy of the jeep and contended that the accident was due to the negligence of the second respondent. M.F.A.No. 1357 of 2001 3 5. Before the Claims Tribunal PW1 was examined and Exts. A1 to A12 and B1 to B6 were marked. The learned Claims Tribunal, on considering the evidence, found that the accident was due to the negligence of the second respondent and awarded a sum of Rs.1,80,000/- as compensation to the petitioner, together with interest at the rate of 9% p.a. from the date of the petition (18.12.1998) till realisation from respondents 1 to 3. The third respondent was directed to deposit the amount. The Original Petition was dismissed against respondents 4 to 6. Being dissatisfied with the quantum of compensation awarded, the petitioner filed this appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the contesting respondents. 7. The learned counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is on the lower side. Whereas the learned counsel for the contesting respondents submit that the compensation awarded is just and reasonable. The learned counsel M.F.A.No. 1357 of 2001 4 for the appellant submitted that at the time of the accident the petitioner was working as a Goldsmith, running his own jewellery and he was an expert in designing ornaments for the women of Muslim community and he was earning Rs.10,000/- p.m. The appellant produced Ext.A10 series of income tax returns showing that the income for the year 1994 - 95 was Rs.50,000/-, for the year 1995 - 96 was Rs.60,000/- and for the year 1996 - 97 was Rs. 1 lakh. When the appellant was examined as PW1, he admits that his jewellery is still functioning and his son is running the jewellery in the name of the petitioner. 8. The Claims Tribunal found that the sudden hospitalisation of the petitioner due to the accident might have affected his business and hence towards short fall in the income from the business for a period of five months, the Tribunal awarded Rs.10,000/- i.e. Rs.2,000/- p.m. Considering the nature of the business conducted by the petitioner, we are of the view that Rs.15,000/- more has to be awarded to the petitioner towards loss of income. M.F.A.No. 1357 of 2001 5 9. The learned counsel for the appellant submitted that the medical records would prove that due to the accident the appellant has lost the vision to his right eye. Ext.A12 is the disability certificate issued by Kovai Medical Center and Hospital Ltd., Coimbatore, which shows that due to the accident the petitioner sustained the following injuries: “i) Large infected wound over the (Rt) side of Upper lip extending from Vermillion to (Rt) Naso Labial area - full thickness injury. ii) Injury to right eye with total loss of vision in (Rt) eye. iii) Injury to the Right optic Nerve causing blindness in (Rt) eye. iv) Full thickness lacerated wounds over upper & lower eyelids of (Rt) eye. M.F.A.No. 1357 of 2001 6 v) Compound communitted of nasal bones with large intra nasal laceration (Rt) nostril.” 10. Ext.A12 shows that the appellant was admitted in the hospital on 30.6.1998 and was discharged on 10.7.1998, after undergoing a major surgery. He was re-admitted on 20.7.1998 and was operated in that hospital and discharged on 25.7.1998. He was re-admitted on 4.8.1998 and underwent a major Plastic surgical Reconstruction operation and was discharged on 10.8.1998. The learned counsel for the appellant submitted that the appellant had gone to Aravind Hospital, Madurai and Balbinder Hospital, Punjab. The appellant produced Ext.A13 series medical bills for Rs.58,034/- The Claims Tribunal awarded Rs.65,000/- towards medical and other incidental expenses like expenses for transportation to hospital, stay at hospital, bystander's expenses and expenses for extra nourishment. Considering the prolonged treatment underwent by the petitioner, we are of the view that Rs.4,000/- more has to be awarded towards M.F.A.No. 1357 of 2001 7 bystander's expenses. Due to the accident, the appellant lost two teeth. No amount is awarded towards compensation for two teeth. We are of the view that Rs.6000/- has to be awarded towards compensation for loss of two teeth. 11. Ext.A12 disability certificate shows that at present the appellant has the following problems. “1) Total blindness Right eye. 2) Edopion of (Rt) lower eyelid resulting in improper closure of eyelids of right eye. 3) There is deviation of Nasal septum due to previous of nasal bones with depression of the dorsum of the nose. 4) There is improper closure of the mouth due to faulty closure of lips due to scarring. 5) tethering of scars to (Rt) maxilla. M.F.A.No. 1357 of 2001 8 6) Unsightly and disfiguring scar over the (Rt) side of the face. 7) Loss of 54 teeth (Rt) upper Jaw. He has permanent disability of 55% (Fifty five percent). Since there is no vision in one eye )Rt. side), he is unfit to do any fine work and cannot perform his duties as a jeweller or goldsmith.” 12. At the time of the accident, the appellant was aged 48 years. The Claims Tribunal awarded a sum of Rs.75,000/- for the continuing functional disability and loss of amenities in life. Considering the nature of disability and loss of amenities in life and disfiguration, we are of the view that a consolidated sum of Rs.25,000/- more is to be awarded under these heads. Thus, in total the appellant is entitled to get a total amount of Rs.50,000/- more as enhanced compensation. 13. Accordingly, this appeal is allowed in part. The appellant is allowed to realise an amount of Rs.50,000/- more as additional M.F.A.No. 1357 of 2001 9 compensation, together with 7.5% interest on the above sum from the date of the petition till the date of realisation from the third respondent. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm