IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 MACA.No. 622 of 2007() ---------------------- OPMV.360/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- JAMES SURESH @ VINOD, S/O.ROBERT, BOBY VILLA, MAPPILATHOTTAM, MEPPADI POST, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE SMT.CELINE JOSEPH RESPONDENT(S): --------------- 1. V.ABU HAJI, S/O.UNNI MUHAMMED, VATTIVARAMBATH HOUSE, CHUNDALE POST, VYTHIRI TALUK, WAYANAD DISTRICT. 2. UNITED INDIA INSURANCE CO.LTD., KALPETTA. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- MACA No. 622 of 2007 --------------------------------------------- Dated, this the 17th day of December, 2009 J U D G M E N T P.R.Raman, J. The appellant is the petitioner in OP 380/1999 on the file of the MACT, Kalpetta. He is injured in a motor accident happened on 01.02.1999. According to the appellant while he was riding scooter from Meppadi to Chundale and when the vehicle reached at Kanchath, he stopped the motor cycle on seeing a friend Johnson, waiting for him and while they were talking, a jeep driving by the first respondent came from the opposite direction in a rash and negligent manner knocked down the appeallant and Arun who were in the motor cycle resulting in the accident. He sustained serious injuries including head injuries. He was taken to Fatima Matha Mission Hospital, Kalpetta and was treated as an inpatient for more than one month. According to him, due to the injuries sustained, he lost consciousness and memory power and having 10% disability as certified in Ext.A3 disability certificate. He was a supervisor in Harrisons Malayalam Ltd. drawing a salary of Rs.4,000/- per month. An amount of Rs.5,00,000/- was claimed as compensation. MACA No. 622 of 2007 2 2. The appellant gave evidence as PW1. Exts.A1 to A4 were marked. No evidence was adduced on the side of the respondents. But Exts.B1 to B5 were marked. The Tribunal on consideration of the facts and circumstances and on the materials on record, found that the accident occurred not only due to the negligence on part of the driver but the appellant was also responsible. He apportioned the blame equally on both the appellant also the driver of the jeep and a total amount of Rs.76,620/- was awarded and the appellant was entitled for 50% of the said amount with 6% interest. 3. It was pointed out that Johnson who died in the accident whose dependants filed a claim petition before the same MACT in 208/1999 which culminated in the Award dated 3rd March, 2005, where it was specifically stated that sole negligence was on the part of the driver of the jeep and the present award though passed subsequently did not take note of the earlier award and thus there is a divergent finding regarding the negligence arising out of the same accident. A copy of the Award was produced for perusal. We find that United India Insurance Company is the 2nd respondent in the said Award dated 3rd March, 2005, in OP(MV) 208/1999. In paragraph 7 of the Award, after referring to Ext.A1 and considering report of PW1 therein the Tribunal held that the accident occurred because of the rash and negligent driving of the vehicle MACA No. 622 of 2007 3 by R1 driver. R1 is Abu Haji who is the first respondent in the present case also. In the absence of any appeal there from by the Insurance Company the finding has become final and binding on the parties. Therefore it is not possible to take a different view in the case on hand. Accordingly we find based on the connected Award which binding on the parties that the accident was due to the sole negligence on the part of the deriver of the jeep. 4. Coming to the quantum of compensation, it is contended that only 5% disability compensation was awarded as against 10% assessed by the Doctor certified as per Ext.A3. It is contended that the Tribunal who have accepted the certificate and awarded compensation of 10%. We are unable to accept this contention merely because a certificate is marked will not substitute the proof of the same. The Doctor who issued the certificate Ext.A3 is not examined in the case. In the said circumstance and in the absence of better materials on record, we confirm the finding regarding the percentage of disability as 5% as found by the Tribunal. 5. However we find that no compensation was awarded for loss of amenities. The appellant was in the hospital for more than 28 days undergone two surgeries and suffered a head injury. In this circumstance, we award an amount of Rs.10,000/- towards the loss of amenities. We also increase the compensation for pain and suffering by another MACA No. 622 of 2007 4 Rs.5,000/-. Thus the compensation awarded on the other heads are just and reasonable. No interference is called for. However rate of interest is only 6% normally going by judicial precedence .we award 7%. 6. In the result, the appellant will be entitled for the full compensation as awarded by the Tribunal. An additional compensation of Rs.15,000/- is awarded as discussed above. The entire amount awarded by the Tribunal as also the additional compensation will carry interest at the rate of 7% from the date of the petition till realisation. Amounts shall be deposited by the Insurance Company within two months from the date of receipt of a copy of this judgment. The Appeal is allowed as above. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc