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 3RD JUNE 2010 / 13TH JYAISTHA 1932 MACA.No. 881 of 2010() ---------------------- OPMV.649/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): PETITIONER ------------------------ C.DEVADAS @ DEVAN, S/O CHANDRAN AGED 32 YEARS, KIZHAKKEMURI PARA ROAD, KANJIKODE PALAKKAD BY ADV. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA RESPONDENT(S): RESPONDENTS --------------- 1. E.ABDUL SALAM, S/O.AHAMMED KUTTY, AGE NOT KNOWN, EYAMBALATH HOUSE, KODUVALLY, KOZHIKKODE. 2. GANESAN, S/O.UNNI PARAVAN, AGED 39 YEARS, KORANGAL VEEDU, PILASSERY POST, KURUMANGALAM, KOZHIKKODE DISTRICT. 3. THE NEW INDIA ASSURANCE CO.LTD., SHAFEER COMPLEX, KANNUR ROAD, KOZHIKODE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.881 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.649/2005 of Motor Accidents Claims Tribunal, Palakkad challenges the judgment and award of the Tribunal dated February 23, 2010 awarding a compensation of Rs. 163,000/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : On October 10, 2004, the claimant along with his co-workers Divakaran and Rajesh were proceeding in a motor cycle bearing Reg.No.TCE/7812 which was ridden by the claimant from Palakkad to Kanjikode. When they reached near the place Kurudikkadu at about 3.30 p.m., a lorry bearing Reg.No.KL-11/K/5146 driven by the second respondent came at a high speed and dashed against the motor cycle of the claimant. The motor cycle went out of control and hit against the MACA.No.881/2010 2 car proceeding in front of the claimant. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 4,14,750/-. 3. Respondents 1 and 2, the owner and driver of the offending lorry remained absent before the Tribunal. The third respondent the insurer of the offending lorry filed a written statement admitting the policy and further contended that there was also negligence on the part of the claimant. 4. PW1 was examined and Exts.A1 to A22 and X1 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. This O.P. was jointly tried along with O.P.No.650/2005 which was filed by one of the pillion riders of the motor cycle. The Tribunal on an appreciation of evidence awarded a compensation of Rs.163,000/- with interest @ 7.5% per MACA.No.881/2010 3 annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the 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 whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries as revealed from Ext.A7, copy of the wound certificate and Ext.A9, copy of the discharge certificate. 1. Type III compound fracture both bones ( R) leg lower 1/3 2. Fracture lateral tibial condyle right 3. Fracture lateral aspect of right patella 4. Lacerated wound site 15 x 6 cm. in length 5. Pain abrasion of right shoulder. Ext.A9, the certificate of disability issued by the doctor PW2 MACA.No.881/2010 4 shows that claimant has suffered a disability of 17%. 8. The Tribunal awarded a total compensation of Rs.1,63,000/-. The break up of the compensation awarded is as under : Disability - Rs. 54,000/- Pain and suffering - Rs. 17,000/- Loss of amenities - Rs. 8,000/- Medical expenses - Rs. 79,000/- Loss of income - Rs. 3,000/- Other counts - Rs. 2,000/- 9. Taking into consideration the nature of the injury sustained and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. It follows that the claimant is not entitled to any enhanced compensation. That being so, the appeal has to be dismissed. In the result, the Appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.881/2010 5 MACA.No.881/2010 6