IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 MACA.No. 1281 of 2004(C) ------------------------------------- OPMV.1349/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT (PETITIONER): ----------------------------------- PATHAYAKANDI SAINABA, AGED 29 YEARS, D/O. SAIDALAVI, MANEKUZHIYIL, VALIA PARAMBA, VIA. PULIKKAL. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: (RESPONDENTS): ---------------------------------------------- 1. PONGAN BALAN, S/O. KORAN POOJARI, PILATHARA AMSOM DESOM, PAYYANNUR, KANNUR DISTRICT - DRIVER. 2. KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. R2 BY ADV. SRI.K.PRABHAKARAN SC KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- M.A.C.A.No 1281 of 2004 ------------------------------------------------- Dated, this the 5th day of February, 2008 JUDGMENT The petitioner in O.P.(MV) No.1349/1996 on the file of the Motor Accidents Claims Tribunal, Manjeri is the appellant. Petitioner sustained injuries in a motor vehicle accident which took place on 25.7.1984. At that time the appellant was minor. She through her guardian and next friend filed MAC No.381/84. Tribunal passed an award for Rs.50,000/- on 16.12.1985. Dissatisfied with the quantum of compensation awarded the appellant through her guardian and next friend filed M.F.A.No.294/1986 before this Court. This Court as per judgment dated 7.3.1991 enhanced the compensation to Rs.70,000/-. Subsequently the appellant filed O.P.(MV) No.1349/1996 claiming further compensation. Though the claim for further compensation was opposed, Tribunal found that appellant was entitled to additional compensation. In the Original Petition it was averred that the accident took place at Pulickal near Kondotty on 25.7.1984. It was averred that appellant sustained fracture of tibia and fibula and she was admitted in the Medical College, Kozhikode on the same day. She was under treatment till 10.9.1984 and after discharge she was admitted in Koya's Hospital, Cheruvannoor and discharged later. It was averred that she was not able to move and again she was admitted in Medical College, Kozhikode on 1.11.1993. Her left leg above knee was amputated and was discharged on MACA No.1281/2004 2 6.12.1993. It was also averred that at the time of filing of M.A.C. No.381/1994 she was minor and Tribunal awarded Rs.50,000/- which was enhanced by this Court in M.F.A.No.294/1986 to Rs.70,000/- on 7.3.1991. On the date of disposal of M.F.A.No.294/1986 also the appellant was minor. It was averred that the gravity of injuries sustained to her was not properly brought to the notice of the court by the guardian which resulted in the reduction of compensation amount. It was also averred that the accident occurred due to the negligence of the driver of the stage carriage bus. Initially she claimed an amount of Rs.1,30,000/- which was subsequently enhanced to Rs.2,00,000/-. 2. The second respondent filed a written statement contending that the petition was filed without any bona fides. The averments in columns 11 to 14 were regarding the nature of injuries, disability, etc. were disputed. The appellant shall produce strict documentary proof. Additional compensation claimed was excessive and unreasonable. It was also contended that the appellant received reasonable amount as compensation in the earlier petition and hence the subsequent claim for additional compensation is to be rejected on the ground of non-production of genuine documentary evidence in support of the case. The averment that the accident occurred due to the negligence of the of the driver of the bus was denied. The bus was driven with due care and caution. It was further contended that the accident occurred while the appellant made an attempt to cut across the road. It was also contended that the second respondent had already paid MACA No.1281/2004 3 Rs.70,000/- and hence it is not liable to pay any more compensation. It was further contended that the petition is filed on an experimental basis and so the claim is to be rejected. 3. No oral evidence is adduced by both sides. Tribunal found that disability can be estimated as 15%. Annual income of the appellant was taken as Rs.15,000/- and applying the multiplier of 16 the Tribunal awarded Rs.36,000/- for disability. Tribunal awarded a total compensation of Rs.56,000/-. Complaining inadequacy of compensation the claimant herself has filed this appeal. 4. When the appeal came up for hearing the learned counsel for the second respondent has raised a contention that Original Petition itself was not maintainable. It is argued that the appellant through her natural guardian and next friend, father filed the earlier Original Petition and the Tribunal awarded an amount of Rs.50,000/- as compensation which was enhanced by this Court to Rs.70,000/- in M.F.A.No.294/1986. It is argued that the appellant ought to have claimed the entire compensation on account of the injuries sustained to her in the accident. It is argued that in personal injury case the injured is entitled to get just compensation which includes compensation for future treatment also. It is argued that in respect of the injuries sustained in one accident the injured should include all his claims in one application and he is not entitled to file successive applications regarding one and the same accident. It is also argued that amputation, even according to the appellant, took place in the year 1993 and there MACA No.1281/2004 4 is nothing to connect the amputation to the accident occurred in the year 1984. Of course there was a contention that since reasonable compensation was paid to the petitioner in the earlier application the applicant is not entitled to get further compensation. But the contention was that since the appellant did not produce genuine documentary evidence she is not entitled to any further compensation. Maintainability of the second application based on one and the same accident was not raised. Even assuming that if such a contention was raised the Tribunal found that the appellant was entitled to get additional compensation. The second respondent does not file any appeal or memorandum of cross objection in this appeal challenging that finding in the award. So the award has become final and conclusive and the same will operate as res judicata. So the second respondent cannot be allowed to argue that the second application is not maintainable. Tribunal took disability at 15% though the appellant produced a disability certificate showing 45% disability. Considering all aspects of the matter, I am of the view that at least 30% would have been taken as the disability. If 30% is taken as disability the compensation for disability comes to Rs.72,000/-. After deducting Rs.36,000/- already awarded for disability, the appellant is entitled to get an additional amount of Rs.36,000/- for disability. I do not find any reason to grant any further compensation on any other count. In the result, appeal is allowed in part. An award is passed in favour of the appellant authorising her to recover an additional compensation of Rs.36,000/- MACA No.1281/2004 5 with 7.5% interest per annum from the date of petition till the date of realisation from the second respondent. Second respondent K.S.R.T.C. is directed to deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. K. PADMANABHAN NAIR, JUDGE. cks