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 15TH MARCH 2011 / 24TH PHALGUNA 1932 MACA.No. 1954 of 2006() ----------------------------------- OPMV.3059/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/CLAIMANT: --------------------------------- PRIINCY K.PHILIP, D/O.K. PHILIP, RESIDING AT ROOM NO.3, NPOL, N.G.O.QUARTERS, KAKKANAD. (FORMERLY MINOR AGED 12 YEARS, DATE OF BIRTH 11-03-1986, REPRESENTED BY HER FATHER AND GUARDIAN, K.PHILIP, S/O.KUNJUKUNJU, RESIDING AT -DO- -DO-). BY ADV. SRI.MATHEW SKARIA, SRI.JOSE THOMAS (PEEDIKAYIL). RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. PRASAD, S/O. PADMANABHAN, KUREEKOT PARAMBIL HOUSE, SEMITHERY ROAD, PIPE LINE, PALARIVATTOM. 2. ELIZABETH MENDEZ, W/O. LAWRENCE, 43/155, ROSE VILLA, CHITTOOR ROAD, ERNAKULAM. 3. THE ORIENTAL INSURANCE CO. LTD., M.G. ROAD, ERNAKULAM. 4. THAMBI, S/O. RAGHAVAN, EDAKKATTUSSERY, KAKKANAD. 5. M.I. MEETHIAN KUNJU, S/O.SAINABA, MANATHU KIZHAKKE PAZHAPURAYIL, KAKKANAD P.O., KOCHI-30. 6. THE NATIONAL INSURANCE CO. LTD., M.G. ROAD, ERNAKULAM. R2 BY ADV. SRI.JOY GEORGE, SMT.PRAICY JOSEPH. R3 BY ADV. DR.ELIZABETH VARKEY. R6 BY ADV. SRI.M.A.GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1954 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 15th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.3059/1998 on the file of the Motor Accidents Claims Tribunal, Ernakulam. In this appeal she challenges the judgment and award of the Tribunal dated October 15, 2005 awarding a compensation of Rs.90,000/- for the loss caused to her on account of the injuries sustained by her in a motor accident. 2. The accident happened on July 6, 1998 at about 8.15 a.m. While the claimant was travelling in a bus bearing registration No.KL-7/A-6996 along M.G.Road and when she reached Near CCPLM School, the bus collided head on with another bus bearing registration No.KEF 1341. She sustained serious injuries. Alleging negligence against the drivers of both the vehicles, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a MACA 1954/2006 2 compensation of Rs.11,45,000/-. 3. Respondents 1 to 3 are the driver, owner and insurer respectively of the bus bearing registration No.KEF 1341 and respondent 4 to 6 are the driver, owner and insurer respectively of the bus bearing registration No. KL-7/A-6996 in which the claimant was travelling. Only respondents 2, 3 and 6 entered appearance. The second respondent filed a written statement contending that the accident occurred due to the negligence of the fourth respondent driver of the bus bearing registration No.KL-7/A-6996. Respondents 3 and 6, insurers of both the vehicles, filed their written statements admitting the policy of respective vehicles. 4. Exts.A1 to A20 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the first respondent, driver of bus baring registration No.KEF 1341 and awarded a compensation of Rs.90,000/- with interest @ 7.5% p.a. from the date of petition till realization and proportionate cost against respondents 1 to MACA 1954/2006 3 3. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Insurance Companies. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence of the first respondent, driver of the offending bus, is not seriously challenged in this appeal. Therefore, the only question, which arises for consideration, is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries in the accident:- 1) Large degloving wound (R) elbow with evidence of fracture humerus & olecranon. 2) C/o. Pain (R) elbow. X-ray showed comminuted fracture (R) olecranon, fracture (R) radial head and fracture shaft of humerus M/3rd L/3rd junction. 8. The Tribunal awarded a total compensation of Rs.90,000/-. Break up of the compensation awarded is as under:- MACA 1954/2006 4 Transportation expenses : Rs. 1,500 Damage to clothing : Rs. 500 Bystander's expenses : Rs. 1,500 Extra nourishment : Rs. 1,000 Treatment expenses : Rs.10,000 Loss of earning : Rs. 3,000 Pain and suffering : Rs. 30,000 Loss of amenities and : Rs. 20,000 enjoyment in life. Disfiguration : Rs.15,000 For future treatment : Rs. 7,500 ------------------ Total : Rs.90,000 ======= 9. The counsel for the claimant has pointed out that no compensation was awarded for the disability caused. The counsel sought enhancement of compensation for future treatment expenses, loss of amenities and enjoyment in life and for disfigurement caused. 10. The claimant was a girl aged 12 at the time of the accident and was undergoing B.Sc. Nursing Course. It is seen that the Tribunal did not award any amount for the disability caused to the claimant. The Medical Board has certified that the claimant has a disability of 11%. Ext.A20 is the said certificate. Therefore, we feel that the claimant is entitled to a compensation for the disability caused. In Ext.A20 it is stated MACA 1954/2006 5 that movement of her right elbow was restricted. Therefore, we feel that a compensation of Rs.25,000/- would be reasonable for the disability caused to the claimant. 11. The Tribunal awarded Rs.7,500/- for future treatment expenses. The claimant produced before this Court a certificate from Chief Plastic Surgeon, Sparsh Hospital, Bangalore to the effect that she has undergone a plastic surgery to remove her scar on the right elbow. She has also produced bills for having paid amount thereunder. Therefore, we feel that for future treatment expenses an additional compensation of Rs.35,000/- would be reasonable. 12. The Tribunal awarded Rs.30,000/- for pain and suffering endured, Rs.20,000/- for loss of amenities and enjoyment in life and Rs.15,000/- for the disfigurement caused. Taking into consideration the nature of the injuries sustained by the claimant and the disability caused, we feel that a compensation of Rs.30,000/- for loss of amenities and enjoyment in life, Rs.30,000/- for disfigurement caused and Rs.40,000/- pain and suffering endured by the claimant would be reasonable. As regards the compensation awarded under MACA 1954/2006 6 other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs.95,000/- with interest @ 7.5 % per annum from the date of petition till realization. It is made clear that the claimant is not entitled to interest on the enhanced compensation granted for future treatment expenses. The third respondent being the insurer of the offending bus shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn