IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 MACA.No. 532 of 2006() ---------------------- OPMV.1458/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/APPLICANT: --------------------------------------- SUNIL KUMAR, S/O.RAVI, NEAR VIJI STUDIO, KURISSADIVILAKAM, VELAMKANNI JUNCTION, WATT'S ROAD, VELIYATHURA, VALLAKKADAVU P.O. THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENT(S): RESPONDENTS: --------------------------------------------------- 1. GANGA PRADEEP, W/O.N.S.PRADEEP, MANAGING PARTNER, M/S.LAKSHMI INDUSTRIES, BAPUJI NAGAR, PONGUMMOODU, THIRUVANANTHAPURAM. 2. RAJEEV, S/O.VIKRAMAN THAMPI, RAJI BHAVAN, NEAR GOVERNMENT HIGH SCHOOL, ELAMBA, POIKAMUKKU P.O. THIRUVANANTHAPURAM. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.I, THAKARAPARAMBU JUNCTION, PAZHAVANGADI, THIRUVANANTHAPURAM. R3 BY ADV. SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= M.A.C.A. No. 532 of 2006 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= Dated this the 17th 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.1458 of 2000 of the Motor Accidents Claims Tribunal, Thiruvananthapuram challenges the award of the Tribunal dated January 10, 2005 awarding a compensation of Rs.43,400/- 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 19 at the time of the accident. According to the claimant, as an auto-rickshaw driver, he used to earn Rs.4,000/- per month. On April 28, 2000 at about 7.20 a.m. the claimant was driving an auto-rickshaw bearing registration No.KL 01 E 9978 along Palayam-Statue MACA 532/06 2 public road. When he reached in front of Marakkar Motors Petrol Pump, near statue, a private bus bearing registration No.KL-01 D 1597, driven by the second respondent, came at a high speed from the opposite direction and dashed against the auto-rickshaw. The claimant sustained serious injuries. According to the claimant, the accident occurred due to a rash and negligent driving of the offending vehicle by the second respondent. The first respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending bus are jointly and severely liable to pay the compensation to the claimant. The claimant claimed a compensation of Rs.2 lakhs. 3. Respondents 1 and 2, owner and driver of the offending bus, remained absent and were set ex parte by the Tribunal. The third respondent Insurance Company field a written statement, admitting the policy and further contending that the accident occurred due to the negligence of the claimant. 4. Doctor, who issued the disability certificate Ext.A12, was examined as PW1 and Exts. A1 to 16 were marked on the side of the claimant. The case records of the claimant was marked as Ext.X!. No evidence was adduced MACA 532/06 3 by the contesting third respondent. The Tribunal, on an appreciation of the evidence, assessed the compensation at Rs.62,000/-, but on finding that there was 30% of the contributory negligence on the part of the claimant, reduced it to Rs.43,400/-. The claimant has now come up in appeal challenging the said finding of the Tribunal and also seeking enhancement of the compensation. 5. Heard the learned counsel for the appellant and learned counsel for the third respondent, Insurance Company. 6. The accident is not disputed. The learned counsel for the claimant has argued that the finding of the Tribunal that the accident occurred due to the negligence on the part of the claimant is without any basis, as no evidence was adduced on the side of the third respondent Insurance Company. The learned counsel has also sought enhancement of the compensation awarded for the disability caused, for the pain and suffering endured by the claimant and for the loss of amenities and enjoyment in life. 7. The following points arise for consideration in this appeal :- 1) Whether the finding of the Tribunal that there MACA 532/06 4 was contributory negligence on the part of the claimant and thereby reducing the compensation awarded can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 8. On going through the award of the Tribunal, we are of the view that the Tribunal went wrong in finding that there was contributory negligence on the part of the claimant. The Tribunal entered such a finding on the basis of Ext.A2 copy of the scene mahazar, which shows that the scene of incident is about the middle of the tar road. It is an admitted fact and proved by Ext.A6 copy of final report submitted by the police after investigation that the case was charged against the second respondent, driver of the offending bus, which prima facie shows that the accident occurred due to the negligence on the part of the second respondent, driver of the bus. The second respondent has not chosen to come forward to swear that there was also negligence on the part of the claimant. No evidence was adduced on the side of third respondent Insurance Company. Insurance Company could have examined the second respondent, the driver of the bus, as a witness to show that there was also negligence on the part of the MACA 532/06 5 driver of the auto-rickshaw. Therefore, the Tribunal is not justified in finding that there was contributory negligence on the part of the claimant. That being so, the said finding is set aside and we hold that the claimant is entitled to the entire compensation assessed by the Tribunal. 9. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 10. The Tribunal assessed a total compensation of Rs.62,000/-. The break up of the compensation assessed is as under:- Loss of earning : Rs.8,000/- Medical expenses : Rs.4,200/- Transport to hospital : Rs.2,000/- Damage to clothing : Rs.250/- Bystander expenses : Rs.2,000/- Extra nourishment : Rs.500/- Pain and suffering : Rs.15,000/- Permanent disability : Rs.23,040/- Loss of amenities : Rs.7,000/- and enjoyment in life. ------------------- Total : Rs.61,990/- Rounded to : Rs.62,000/- ========== 11. The learned counsel for the appellant has mainly sought enhancement of compensation for disability caused, for pain and suffering and for loss of amenities and enjoyment in life. MACA 532/06 6 12. The claimant sustained malunited fracture of the shaft of right femur with excess callus. Ext.A4 is the copy of the wound certificate. Ext.A8 is the copy of the referral card, which shows that the claimant was treated by open reduction and internal fixation with K nail and below knee cast was also given. Ext.A12 certificate of disability issued by PW1 doctor shows that the claimant has now permanent disability of 8%. In Ext.A12 it is stated that the petitioner has a malunited fracture of the shaft of right femur with excess callus and that he has the following disabilities:- 1) Persistent tenderness over the fracture site. 2) ½ inch shortening of the right lower limb. 3) 5 c.m. quadriceps wasting of the right thigh. 4) He had painful limitation of terminal degrees of the flexion of the right knee. 13. The claimant was an auto-rickshaw driver and used to earn Rs.4,000/- per month, according to him. The Tribunal took his monthly income as Rs.2,000/- and assessed his disability at 6% and adopted a multiplier of 16 and assessed Rs.23,040/- for the disability caused. As an auto- rickshaw driver, we feel that the monthly income of the claimant can be reasonably fixed at Rs.2,500/-. PW1 doctor MACA 532/06 7 was examined and Ext.A12 disability certificate was proved. Hence, we feel that the percentage of disability assessed by PW1 at 8% has to be accepted. Thus, for the disability caused, the claimant is entitled to Rs.38,400/- (Rs.2,500 x 12 x 16 x 8/100). 14. For pain and suffering and for the loss of amenities and enjoyment in life, a compensation Rs.15,000/- and Rs.7,000/- respectively was assessed by the Tribunal, which appears to be very low. Taking into consideration the nature of injuries sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs.20,000/- for pain and suffering and Rs.10,000/- for loss of amenities and enjoyment in life would be reasonable. 15. For loss of earning Rs.8,000/- was assessed by the Tribunal i.e., for four months at the rate of Rs.2,000/-. We have fixed the monthly income of the claimant as Rs.2,500/-. Therefore, on this count the claimant is entitled to a compensation of Rs.10,000/-. 16. In the result, the claimant is entitled to an additional compensation of Rs.43,960/- (Rs.18,600 +25360). He is entitled to interest @ 9% p.a. from the date of petition till realization and proportionate cost. The third respondent MACA 532/06 8 being the insurer of the offending vehicle, shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to that effect. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn