IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 MACA.No. 10 of 2010() --------------------- OPMV.3870/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT: PETITIONER ------------------------ ROSEMOL, AGED 31 YEARS, W/O.KURIAN, THEKKUDAN HOUSE, AVANNOOR, PORATHISSERY, THRISSUR. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENTS: RESPONDENTS -------------------------- 1. K.G.VENU, S/O.GANGADHARAN, KUNDOLY HOUSE, PANAMKULAM, KARUVANNOOR. 2. ORIENTAL INSURANCE COMPANY LIMITED, MAHESWARI BUILDING, M.G.ROAD, THRISSUR. ADV. SRI.TITUS MANI FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. NO. 10 OF 2010 = = = = = = = = = = = = = = = = DATED THIS, THE 7TH DAY OF OCTOBER, 2010. J U D G M E N T Gopinathan, J. The appellant is the petitioner in O.P.(MV) No. 3870 of 2003 on the file of the Motor Accidents Claims Tribunal,Thrissur. At 3.30 p.m. on 23.4.2002, an auto rickshaw bearing No. KL-8/S 2705 driven and owned by the first respondent and insured by the second respondent, hit against the motor cycle bearing Reg. No. KL-9H 4651, ridden along the Thrissur Irinjalakkuda public road on which the appellant was a pillion rider. The appellant, along with the rider and an accompanying child fell down and sustained injuries. Attributing negligence against the first respondent, the appellant lodged a claim for Rs. 1,50,000/-. 2. The respondents in their written statements, attributed negligence against the rider of the motor cycle and contended that the accident was not because of the negligent driving of the first respondent and that it was because of the negligent riding of the motor cycle. The first respondent further contended that he was holding valid driving licence and that the claim made in the petition is exorbitant and that the respondent is not liable. The second respondent further contended that the first respondent had no MACA 10/2010 2 driving licence and hence the second respondent is not liable. 3. The Tribunal below, tried the petition along with two other connected petitions and passed a common award dated 28.8.2009, which is now impugned in this appeal. Regarding the occurrence of the accident, no oral evidence was adduced. However, relying upon Ext.A1, A4 and A6, it was found in favour of the appellant. Going by Ext.A17 disability certificate and Ext.A7 discharge card, the Tribunal arrived at a conclusion that as a result of the injury sustained, the appellant had sustained 5% permanent disability. As against her claim of Rs.3,500/- as monthly income, the Tribunal estimated the monthly income at Rs.2,500/-. It was also concluded that the appellant might have been laid up for a period of three months. On that assessment, the Tribunal awarded the following amount as compensation: 1. For loss of earning Rs. 7,500/- 2. For transportation Rs. 2,325/- 3. For extra nourishment Rs. 1,500/- 4. For damages to clothing Rs. 500/- 5. For treatment Rs. 24,462/- 6. For by stander Rs. 2, 000/- 7. For pain and suffering Rs. 15,000/- 8. For disability (2500x12x16x5/100)Rs. 24,000/- Total 77287/- (Rounded to Rs. 77300-) MACA 10/2010 3 Challenging the inadequacy of the above compensation, this appeal was filed. 4. We heard the learned counsel for the appellant as well as the Standing Counsel for the second respondent. We notice that the petitioner had sustained a compound comminuted fracture over middle 3rd of left tibia and abrasions on right elbow and knee. Wound debridement, closed reduction and external fixation of left tibia was done. The appellant was discharged from the hospital on 29.4.2002. Subsequently, she was reviewed on 3.5.2002. In Ext.A17, Dr. Jacob Padikkala attached to the Elite Mission Hospital, Koorkenchery, Thrissur, had certified that there is shortening of 1cm. to left lower limb, malunion of left tibial fracture and stiffness of left knee and left ankle and the permanent disability was assessed as 10%. Though in Ext.A17 malunion is noticed, there is nothing on record to show that such malunion was noticed while the appellant was reviewed on 3.5.2002. It is pertinent to note that the appellant had not come forward to adduce any evidence to show that she suffers shortening of her lower limb. The stiffness of left knee and left ankle usually occurs because of the non movement of limbs and in the normal course, it could be cured by physiotherapy. There is nothing on record to show that after 3.5.2002, the MACA 10/2010 4 appellant had gone for any sort of treatment. So, prima facie the stiffness certified in Ext.A17 did not appear to be true. Malunion alleged also didn't appear to be true. It is for that reason and for the non examination of either appellant or the doctor who issued Ext.A17 the Tribunal below rejected Ext.A17 and on evaluating the nature of the injury, the Tribunal arrived at a conclusion that for determining the compensation, the disability can be determined at 5%. We do not find that the Tribunal had in any way gone wrong in determining the disability at 5% after rejecting Ext.A17. So also regarding the income, other than the statement in the petition, there was no document. So the Tribunal was justified in fixing the monthly income at Rs. 2,500/-. Regarding the age also, the appellant had not adduced any evidence. In the above circumstances, we find that the Tribunal had correctly applied the multiplier of 16. That also requires no interference. The Tribunal had awarded treatment expenses up to Rs. 24,462/-, for which bills were produced. Towards compensation for pain and suffering Rs.15,000/- is awarded. The impugned award passed by the Tribunal appears to be very just and reasonable and requires no interference. Though no oral evidence was adduced, Tribunal had best assessed with available documents. MACA 10/2010 5 In the result, the appeal fails. It is dismissed; but without any order as to costs. PIUS C KURIAKOSE, (JUDGE) P.S. GOPINATHAN, (JUDGE) knc/-