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 22ND MARCH 2011 / 1ST CHAITHRA 1933 MACA.No. 2352 of 2010 --------------------------------- [O.P.(MV).NO.718/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VATAKARA] .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED THRISSUR, NOW REPRESENTED BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV.SRI.P.JACOB MATHEW. RESPONDENT/PETITIONER: ----------------------------------------- SREEKANTH(MINOR),REPRESENTED BY HIS FATHER JAYAPRAKASH"JAYA NIVAS"EYYAMKODE P.O, VIA. NADAPURAM, KOZHIKODE DISTRICT – 673 504. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.T.S.SHYAM PRASANTH, SMT.DIVYA CHANDRAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2352 of 2010 & Cross objection No.18 of 2011 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 22nd day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No.718/2007 on the file of the Motor Accidents Claims Tribunal, Vatakara. In this appeal the third respondent Insurance Company challenges the judgment and award of the Tribunal dated May 14, 2010 awarding a compensation of Rs.2,91,930/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The claimant was a boy aged 8 at the time of the accident. The accident happened on March 16, 2006 at 4.10 p.m. near Kollangode Balu Memorial Auditorium. While the claimant was returning from his school to his house in an auto-rickshaw, a bus bearing registration No.KL-8W/1564, driven by the second respondent, came at a high speed and MACA 2352/2010 2 dashed against the auto-rickshaw. The claimant sustained serious injuries. Alleging negligence against the second respondent, the driver of the offending bus, the claimant filed the Original Petition before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 5 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending bus, remained absent before the Tribunal. The third respondent, insurer of the offending bus, filed a written statement admitting the policy, but attributed negligence to the driver of the auto-rickshaw involved in the accident. Exts.A1 to A10 and Ext.C1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the second respondent and awarded a compensation of ` 2,91,930/- with interest @ 7.5% p.a. from the date of petition till realization. The third respondent Insurance Company has MACA 2352/2010 3 come up in appeal contending that there was also negligence on the part of the driver of the offending auto- rickshaw and that the compensation awarded by the Tribunal is excessive. The claimant has filed a cross objection claiming enhancement of the compensation awarded by the Tribunal. 4. Heard the learned counsel for the Insurance Company and learned counsel for the claimant. 5. Following questions arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to sole negligence of the second respondent and that there was no negligence on the part of the driver of the auto-rickshaw can be sustained? 2) Whether the compensation awarded by the Tribunal is excessive ? And, if not, whether the claimant is entitled to any enhanced compensation? 6. Point No:1:- Learned counsel for the appellant Insurance Company argued that as the accident is happened as a result of a collision between the two vehicles, it has to be held that there was also negligence on the part MACA 2352/2010 4 of the driver of the auto-rickshaw. We find no substance in the above contention. The police has charged the case against the second respondent, as evidenced by Ext.A7 copy of the charge sheet. Further no evidence was adduced by the contesting third respondent Insurance Company to show that there was negligence on the part of the driver of the auto-rickshaw in causing the accident. Therefore, we are of the view that the Tribunal is justified in holding that the accident occurred solely due to negligence of the second respondent, driver of the offending bus, and that there was no negligence on the part of the driver of the auto-rickshaw involved in the accident. 7. Pint No.2: The next question for consideration is whether the compensation awarded by the Tribunal is excessive and if not whether the claimant is entitled to any enhanced compensation. The counsel for the appellant Insurance Company argued that the Tribunal for assessing the compensation for the disability caused took the monthly income of the claimant as Rs.3,000/- which is recessive as MACA 2352/2010 5 the claimant was a boy aged 8 at the time of the accident. On the other hand the counsel for the claimant would argue that the compensation awarded by the Tribunal in quite inadequate. 8. The claimant sustained the following injuries in the accident:- 1) Lacerated wound 10 x 3 x 2 cm. over (R) leg. 2) Lacerated wound 6 x 2 x 2 cm. over (R) thigh. 3) Lacerated wound 6 x 2 x 1 cm. over parietal region. 9. The Tribunal awarded a total compensation of Rs.2,91,930/-. Break up of the compensation assessed is as under:- Pain and suffering : Rs. 45,000 Transportation : Rs. 20,000 Bystander's expenses : Rs. 9,400 Medical and miscellaneous : Rs. 39,730 expenses. Loss of amenities and : Rs. 15,000 inconvenience etc. Extra nourishment : Rs. 8,000 Loss/reduction in earning : Rs.1,45,800 capacity. Special care and attention : Rs. 9,000 MACA 2352/2010 6 ------------------ Total : Rs.2,91,930 ======== 10. Ext.C1 certificate issued by the Medical Board shows that the claimant has post-traumatic stiffness of right ankle and has a disability of 27%. One of the members of the Medical Board was examined as CW1 to prove Ext.C1.The Tribunal took the notional income of the claimant as Rs.3,000/- per month and adopted a multiplier of 15 and awarded Rs.1,45,800/- for loss of dependency. Taking into consideration the nature of the disability caused to the claimant, we feel that percentage of disability as 27% assessed by the Medical Board is reasonable. As regards the monthly income of the claimant, we are of the view that Rs.3,000/- assessed by the Triobunal is on the higher side and we feel that the same can be fixed at Rs.2,000/- as the claimant was a boy aged 8. Multiplier adopted by the Tribunal as 15 appears to be reasonable. Thus, calculated for the disability caused, the claimant is entitled to a compensation of Rs.97,200/- (Rs.2,000/- x 12 x 15 x 27%) MACA 2352/2010 7 instead of Rs.1,45,800/- awarded by the Tribunal. The compensation awarded under other heads is in our view just and reasonable and not excessive. 11. In the result, the claimant is entitled to a total compensation of Rs.2,43,330/- instead of Rs.2,91,930/- assessed by the Tribunal. The appellant shall deposit the amount with interest and cost 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 partly allowed and the cross objection is dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn