IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 MACA.No. 1886 of 2008(C) ------------------------------------- [O.P(MV).NO.719/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA] .................... APPELLANT/2ND RESPONDENT: ----------------------------------------------- THE NATIONAL INSURANCE COMPANY LTD., KOYAS SHOPPING COMPLEX, NARANGAPURAM, P.B NO.6, THALASSERY PIN – 670 101. BY ADV. SRI.RAJAN P.KALIYATH. RESPONDENTS/CLAIMANT & R1: ----------------------------------------------- 1. BIJU E.K., S/O. KELAPPAN NAMBIAR, AGED 28 YEARS, THAZHIYATH HOUSE, POST KOROTH ROAD, VATAKARA, PIN -673 309. 2. DHANANJAYAN, S/O. ANDY, MANIKKOTH HOUSE, POST KOROTH ROAD, AZHIYOOR, VATAKARA, PIN- 673 309. R1 BY ADV. SRI.P.M.HABEEB. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO.1886/2008-C: ORDER ON I.A. NO.2244/08 IN M.A.C.A. NO.1886/2008-C DISMISSED 29/10/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.1886 OF 2008 ............................................. Dated this the 29th day of October, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Vadakara in OP(MV)No.719/2004. It is the case of the claimant that while he was walking along the road, an auto rickshaw driven by the first respondent came and hit on him resulting in injuries to him. 2. The insurance company would contend that he was not a pedestrian but a gratuitous passenger in a goods auto rickshaw and therefore the insurance company shall not be made liable. It is also contended by the insurance company that the compensation awarded under different heads are exorbitant and it requires interference. The Tribunal has awarded a sum of Rs.89,852/= with 6% interest. 3. Heard the learned counsel for both sides. Let me first consider about the case of the insurance company that the claimant was a gratuitous passenger in an auto rickshaw. It has to be stated that the police has charge sheeted the : 2 : M.A.C.A.NO.1886 OF 2008 driver of the auto rickshaw for hitting the claimant as a pedestrian. On receipt of the charge memo, the accused appeared and pleaded guilty. The insurance company would contend that the certification in the wound certificate would reveal that he was not a pedestrian. It has to be stated that the police after due investigation had described the accident as one hitting on a pedestrian. The first respondent who had entered appearance and filed a written statement also would contend that the accident took place when the claimant abruptly crossed the road. The sum and substance of the materials would indicate that the accident caused is to a pedestrian and therefore the contention of the insurance company cannot be accepted. 4. Now turning to the quantum. A perusal of the wound certificate would reveal that the claimant had sustained fracture of both bones of right forearm, radial head dislocation and nerve palsy. He was treated in the Medical College Hospital from 22.12.2003 to 4.1.2004 and again from 1.3.2004 to 6.3.2004 in District Co-operative Hospital and again from 28.3.2006 to 30.3.2006. He had hospitalisation : 3 : M.A.C.A.NO.1886 OF 2008 of about 202 days. The claimant has produced the bills for Rs.33,571/=. Medical Board assessed the disability at 4%. The income is only taken at Rs.2,000/= which appears to be very reasonable. But applying the multiplier in Sarla Verma v. Delhi Transport Corporation (2009 ACJ 1298), the multiplier should be 17 and not 18 and therefore there will be a reduction of Rs.960/= which I round as Rs.1,000/= on that head. For pain and sufferings also the compensation awarded is little excessive and I reduce it by Rs.3,000/= and since disability certificate as such has been admitted, I reduce the loss of amenities compensation also by Rs.1,000/= thereby reducing it to Rs.5,000/=. 5. The learned counsel for the appellant would contend that the amount awarded is extremely reasonable. But as stated by me earlier, under the provisions of the Motor Vehicles Act what is intended to be given is a just and reasonable compensation. The court cannot be lavish or miserly but reasonable. When overlapping occurs that has to be duly balanced and reduce it under one head or other. It is applying these principles, I have reduced Rs.5,000/= : 4 : M.A.C.A.NO.1886 OF 2008 from the total compensation awarded. 6. In the result, the MACA is disposed of by passing a revised award as follows: The compensation amount is fixed at Rs.84,852/= with 6% interest from the date of petition till realisation and retained the other portion of the operative portion of the award of the Tribunal. The insurance company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. If any amount is already deposited, balance alone need be deposited. M.N. KRISHNAN, JUDGE. cl : 5 : M.A.C.A.NO.1886 OF 2008 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of October, 2010. J U D G M E N T