IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 MACA.No. 2868 of 2008() ----------------------- OPMV.782/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER: ------------------------- K.P.ASSAN KOYA ALIAS HASSAN KOYA, AGED 44 YEARS, S/O.MOIDEEN KOYA, KALANTHANS, PAYYANAKKAL ROAD, CHAKKUMKADAVU P.O., KOZHIKODE. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. N.C.JOSE, S/O.CHANDY, 20/IA COTTAGE, CHEVAYOOR, KOZHIKODE-7. 2. N.MOHAMMED SALIL, S/O.HAMZA, PERUMALAKANDI HOUSE, PUTHIYANGADI, WEST HILL P.O., KOZHIKODE-5. 3. NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE II, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE. (R1 AND R2 ARE DELTED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT/PETITIONER AS PER ORDER DATED 7-10-2009 IN I.A. 2741/2009) ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= M.A.C.A. No. 2868 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= Dated this the 11th day of March, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.782 of 2001 of the Principal Motor Accidents Claims Tribunal, KOZHIKODE challenges the award of the Tribunal dated May 18, 2007, awarding a compensation of Rs. 52,637/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these:- The claimant was aged about 34 at the time of the accident and used to earn Rs.4,000/- per month by selling fruits. On October 11, 2000 at about 7 a.m. he was pillion riding on a scooter bearing registration No.KL 11 E 4025 MACA 2868/08 2 from Kozhikode to Kallai. When he reached near Premier Bus stop, another scooter bearing registration No.KL 11 A 8412 came at a high speed from behind and dashed against the scooter of the claimant. The claimant sustained serious injuries. .According to the claimant, the accident occurred due to a rash and negligent driving of the other scooter by the second respondent. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending vehicle are jointly and severely liable to pay the compensation to the claimant. 3. Respondents 1 and 2, owner and rider of the offending scooter remained absent and were set ex parte by the Tribunal. The third respondent Insurance Company of the said scooter filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence on the part of the rider of the other scooter. 4. Exts.A1 to A4 series were marked on the side of the claimant and no evidence was adduced by the MACA 2868/08 3 contesting third respondent. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.52,637/- with interest at the rate of 6% p.a. from the date of petition till realization and costs. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant and learned counsel for the third respondent, Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not challenged in this appeal. Therefore, the only question which arises for consideration is the claimant is entitled to any enhanced compensation. 7. The Tribunal awarded a total compensation of Rs. 52,637/-. The break up of the compensation awarded is as under:- Hospitalisation and medical : Rs.34,137/- MACA 2868/08 4 bills. Incidental charge (11 days) : Rs.1,500/- Pain and suffering : Rs.10,000/- Loss of income : Rs.4,500/- Transportation : Rs.500/- Loss of amenities in life : Rs.2,000/- ---------------- Total Rs.52,637/- ======= 8. The learned counsel for the appellant has mainly argued that no compensation was awarded for the disability caused to the claimant. We find force in the above contention. Ext.A2 a copy of wound certificate shows that the claimant has sustained tenderness on the right leg. X- ray reveals fracture of upper tibial portion. Ext.A3 is the discharged summary, a copy of which is made available to us for perusal. Ext.A3 shows that the claimant has undergone the following treatment:- 1) Under epidural anaesthesia, bone grafts were harvested from (L) ilium. 2) Under C-Arm image intensifier control, femoral distrective was used to distract the fracture using Schanz screws one in femur MACA 2868/08 5 and one in tibia. After reduction, through an 1” incision, depressed articular surfaces were elevated and gaps filled with harvested bone grafts. 9. At the time of discharge, his condition was as found below:- “1) 2 cancellous screws were used to fix the fragment ogynaesan ring assembly was used to stabilize the fracture. 2) There was posterior subhluxation of the femur on tibia and have a femoral ring was added after using 2 femoral distracators which are on medical side and another on lateral side on 19-10-2000.” It is clear from the above that the claimant has suffered some disability due to the injuries sustained by him. Learned counsel for the appellant/claimant submits that the claimant has filed a petition to summon the doctor, which was not allowed by the Tribunal and that therefore, the matter may be remanded to the lower court to afford MACA 2868/08 6 him an opportunity to examine the doctor to prove the claimant’s disability. The accident occurred in the year 2000 i.e., about ten years ago. If the case is remanded to the lower court, further delay will be caused. Therefore, we are not inclined to remand the case to the lower court. 10. On the basis of the available evidence, we feel that for the disability caused the claimant can be awarded a lump sum amount of Rs.20,000/-. For the loss of amenities and enjoyment of life only Rs.2,000/- was awarded by the Tribunal. Taking into consideration the injuries sustained, we feel that a compensation of Rs.15,000/- is reasonable on this count. Regarding the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 11. In the result, the claimant is found entitled to additional compensation of Rs.33,000/-. He is entitled interest @ 9% from the date of petition till realization with proportionate costs. The third respondent Insurance Company shall deposit the amount within two months from MACA 2868/08 7 the date of receipt of a copy of this judgment with notice to the claimant. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn